The new Law on Advertising (the “Law”) was recently adopted. Implementation starts from 6 May 2016. It introduces significant novelties in alcoholic advertisement and advanced forms of communication e.g. channeling, on line/internet advertisement, cookies; it focuses on advertisement of “novel” products Misleading and comparative advertising is better defined and extensive. “Lighter sanctions” imposed.
It is a fact that the subject, methods and contents of advertising are changing rapidly, and it seems that the (new) Law is keeping track by bringing into legislation advanced forms of communication e.g., channeling, on line/internet advertisement, cookies… The Law covers activities which per se are not typical advertising, e.g. release of personal message, public notification carried out by official bodies, (political) election campaign, etc. A legislator has recognized the need to better define but also further develop legal institutes present in current law. As such, the Law is in compliance with EU’s Aquis; however, it will only be after its full implementation (and building practice) that one could assess the extent truly reached in terms of goals, application results and the level of approximation.
The Law introduces significant novelties in alcoholic advertisement i.e. specific press media release, and launching into public outdoor area.
In comparison with (still valid and current) law, misleading and comparative advertising is better defined and seems to be more extensive. The Law does not prohibit comparative advertising but sets the cumulative conditions to be met in order to permit such type of advertising; it is clearly set out which characteristics are relevant to determine whether an advertisement might be misleading. For these two advertisement categories misdemeanors are imposed, while each person that finds to be affected, might initiate a court proceeding and request the termination of such advertisement.
By setting out the precise term of 30 days within which an advertiser is obligated to keep the advertising note (from the day of the last release and subject to insight), as well as keeping the advertisement note in the same period, a better legal protection for the recipients has been provided.
Specific mandatory solutions and limitation given for a product placement, television advertising and teleshopping, interrupting shows and programs to release advertising, are prescribed by the Law.
Innovations in terms of new ways of advertising as well as in terms of new products:
– The legislator focused (also) to advertisement of products available i.e. appeared on the market after the present piece of law has been put on place: beside restrictions i.e. prohibition of tobacco products advertising, prohibition of electronic cigarettes is also considered;
– Advertisement of alcoholic beverages introduces a limit depending on the percentage of alcohol in terms of venue and time of release: above 20% of alcohol is prohibited, in terms of electronic advertising and in public outdoor area. It is restricted to exposition on marketplace or fair stand, on corporate communication medium and corporate presentation, in professional books and magazines intended exclusively for retailers and manufacturers of these products. Below 20% is permissible if falling under certain conditions. For illustration and comparison purpose, the current law brings only beer and wine as seen as light alcoholic drinks. Since there are many new products placed on the market having low percentage of alcohol but cannot be classified as beer or wine- difficult to be currently categorized and therefore accordingly advertised;
In terms of imposing sanctions, the Law introduces “lighter punishment” approach (in the current law there are economic offenses, numerous offenses and protective measures): (only) offenses and protection measures are imposed while the concept of economic offenses is abandoned. Protection measures are reduced (from 1 to 5 years in current law) to be from 6 months to one year, monetary sanctions are reduced. Such tendency is available and seems present in other recently passed legislation e.g. public revenue debts and collection of taxes.
Specifics about internet advertising
When speaking about new and popular tendencies present in advertising, i.e. internet advertising, it ought to be mentioned that the Law pays special attention to such.
Internet advertising is defined, by including advertising on internet presentation, social networks, Apps and by other means of internet communication. Due to the industry specifics, the Law applies only in cases where the advertisement (surely) is targeting its recipients from Serbia, and that the goods/services being advertised can be purchased/delivered into the Serbian territory. Although might be seen not (entirely) connected, the question arises from perspective of different implementation/ abuse of privacy data i.e. in which way and how to track the Serbian consumer outside our territory?
Due to internet advertising specificity, an interest to the question of liability of advertising note transferor arises; there are 3 participants: advertiser, transferor of advertising note and person commercializing its web space. The transferor only transfers the advertising note to a specific site via an algorithm and practically has no influence on such algorithm: in terms of liability it is difficult to make a parallel with standard duties made from advertising. If an inspection body finds that the advertising note is contrary to the Law, the transferor will be obliged to remove such advertisement. If the transferor fails to remove the note upon expiry of given time, s/he may be held responsible for the content of advertising note and mandatory sanction may be imposed. Therefore, the transferor of the advertising note is not automatically responsible for its content but only if s/he acts contrary to decision of the inspection body.
When the transferor of advertising note is a provider of information society services, he is not responsible for the content of sent note and for its directing in terms of the law governing electronic commerce, if he had not initiative its transfer, performed the selection of data or documents which are transferable, excluded or changed the data in the content of the note or the document and have chosen the acceptor of the transferring.
Similar like in moment when the Law on Consumer Protection was passed, it remains to be seen and subject to future assessment what will be the level of actual implementation and how the State will position itself in “fight against intensive campaigns/ disloyal advertisers”; also important is how will the State find ways to educate the population (general but also expert public) in order to apply advertising with integrity in a responsible and clear manner.
 Still valid law for a case at hand prescribes a term up to 30 days for keeping advertising message that in practice brings uncertainty and violate the right of recipient to ask for disclosing i.e. keeping the advertising note in given note.