Advertising on the Internet: control rebooted

The most topical issues are as follows:

• What is advertising and how can it be separated from reference data?
• Do the new requirements apply to press releases or the content of social media and messengers (for instance, Telegram)?
• What is liability for violating such provisions?

Let us examine the specified issues one after another.

The Russian Federal Service for Supervision of Communications, Information Technology and the Mass Media (known by the Russian abbreviation “Roskomnadzor”) grants the Russian Federal Antimonopoly Service (FAS Russia) access to information about advertising on the Internet and cooperates with the service on issues of whether data distributed on the Internet falls in the category of advertising (letter No. 03-100982 dated 14 November 2022 https://cljournal.ru/news/24438/). A regulatory framework has been created for this purpose.

FAS Russia’s approaches to separating advertising and data that is not advertising have not changed. As before the new regulation was adopted, of key significance are the contents of the information and the purposes for which it is posted.   The term “advertising” se t out in article 3 of the Law on Advertising also remains the same. In addition, information that does not meet the criteria specified in this definition cannot be recognised as advertising.

No changes have been made to the position of the antimonopoly authority with regard to reference data. Advertising does not include published items about goods (services) manufactured/sold that are posted on the manufacturer's/seller’s website if they are intended to inform visitors of the website about the range of goods, terms of use and directly about the seller or manufacturer of the goods or the person that supplies the services.

As regards whether press releases should be labelled, the regulators’ logic is in line with the general approach that has been selected.

“...if information posted on the Internet meets the criteria of advertising as set out in the Law on Advertising, such information may be subject to the regulation of article 18.1 of the Law on Advertising. <…> Whether a press release can be classified as advertising depends on its contents, in particular, on whether it contains information addressed to public at large and aimed at drawing attention to the subject of the advertising, creating or keeping up interest in it and promoting it on the market” (Roskonmadzor’s letter No. 03-100982 dated 14 November 2022 https://cljournal.ru/news/24438/ “On examining an application”).

The official position on the labelling of data in Telegram has been set out by FAS Russia on its website https://fas.gov.ru/news/32226. The general approach continues to apply to this issue as well.

“...advertising in Telegram does not need to be labelled when the resource is used as a messenger for specific users to exchange messages. If Telegram is used for communicating information to the public at large by means of service capabilities that are offered (via Telegram channels), such advertising is subject to the Law on advertising and should be labelled”.

Finally, since 1 September 2022, the current version of article 18.1 of the Law on Advertising has provided for liability for two groups of violations.

1. Liability for advertising not bearing the “advertising” label and an indication of the advertiser (article 18.1(16) of the Law on Advertising). FAS Russia can already impose liability under article 14.3(1) of the Russian Code of Administrative Offences if advertising does not bear the label and indication. However, no such practice has emerged so far.
2. Liability for providing incomplete, inaccurate or outdated information as well as for a delay in providing data to Roskonmadzor (article 18.1(3) and article 18.1(11) of the Law on Advertising). The Russian Code of Administrative Offences does not yet directly provide for measures of liability.

Initially it was reported that the relevant fines would be introduced from March 2023. However, in February representatives of Roskonmadzor announced https://cljournal.ru/news/24752/ that the date was being deferred when the imposition of liability for the specified actions is to start. Therefore, the issue in this respect remains open.

The coming into force of the new provisions definitely evidences that control has been strengthened in the area of advertising on the Internet and still raises many issues with market players. At the same time, the regulators are not yet applying any measures of liability for the violation of the specified rules and give business entities time to adjust gradually and painlessly as well as to streamline all of the necessary processes.

Source: Competition and Law