Does the Law in Your Country Impose General Positive Obliglation on Advertisers to Provide

Does the Law in Your Country Impose General Positive Obliglation on Advertisers to Provide

LIDC 2008

Question B

Does the law in your country impose general positive obliglation on advertisers to provide all relevant information (information that enables the consumer to make an informed decision)?

Yes

In which area of law and which branch of law is the general obligation located (unfair competition law, marketing practice law, consumer law, contract law, administrative law, other)?

The general obligation on advertisers to provide relevant information to the consumer is located in Italy principally in consumer law (Codice del Consumo established with law September 6 2005, n. 206 and modified with law August 2 2007, n. 146, law October 23 2007, n. 221 and law December 24 2007, n. 244). Moreover, the general positive obligation to provide information to consumers imposed on advertisers is also contained in unfair competition law and contract law.

Is the information that has to be provided qualified in any way and how (e.g. all information of relevance to consumers, only health related information, only economically related informations, etc.) Are these qualifications set out in statutory law or established trough case law?

According to article 22 of The Italian “Codice del Consumo” a commercial practice shall be regarded as misleading if, in its factual contest, taking account to all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

By what means is the general duty interpreted and concretized: by secondary legislation, by case law, by administrative guidelines, by self regulation?

The general duty to provide information is interpreted and concretized in Italy by secondary legislation (according to article 10 of the Italian consumer code) by administrative and civil case law (according to article 27 of the Italian consumer law) and by self regulation (according to article 27 ter of Italia consumer law).

If your country is a member of the European Union, what will be/is the fate of the positive duty to disclose information after the implementation of the UCPD?

The UCPD has been, already, implemented in Italy ever since the year 2005 with law September 6 2005, n. 206 and the successive above mentioned modifications

What is the relationship of existing positive obligation to provide information in fair trading (marketing practices; unfair competition) laws with contract law?

The relationship of the positive obligations to provide information set out by the Italian consumer law and the Italian civil law is based on the principle of subsidiarity. On this regard article 38 of the Italian consumer code clearly states that: To the extent that the consumer code does not provide with reference to the contracts concluded between a professional and a consumer the Italian civil code shall apply.

Does the law in your country stipulate any specific positive obligations for advertisers to provide information?

Yes, in particular article 22.4 of the Italian “Codice del Consumo” foresees that, in case of invitation to purchase, the obligation to submit the following information with reference to:

the main characteristics of the product, to an extent appropriate to the medium and the product;

the address and the identity of the trader, such as his trading name and where applicable, the address and the identity of the trader on whose behalf he is acting;

the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;

the arrangement for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;

for products and transactions involving a right of withdrawal or cancellation, the existence of such a right.

In Italian civil law there is article 1338, pertaining to general dispositions on the contract, that expressly indicates an obligation to inform the counterpart on the existence of a cause of nullity of a contract. Other provisions may be found in specific articles with reference to single contracts such as article 1746 of the Italian civil code with reference to agency contract, article 1710 of the Italian civil code with reference to the commission contract, article 1759 of the Italian civil code with reference to the intermediary contract.

In which area of law and which branch of law are such duties located?

Consumer Law and in the Italian Civil Code.

Can you name examples of specific obligations to provide information that are limited to:

a) Certain categories of products

b) Certain categories of services

c) certain product characteristics

d) certain contractual rights and obligations?

The Italian consumer code contains specific obligations related to specific contracts with reference to certain real estate rights (articles 69-81 of the Italian consumer code), tourist services (articles 82-100 of the Italian consumer code), TV sales (articles 28-32 of the Italian consumer code), distance selling (article 50-61 of the Italian consumer code). With reference to financial services specific obligations are foreseen by law September 1 1993, n. 385.

Does the law in your country impose on advertisers a duty to provide information about their own identity and contact details?

Yes, this obligation is contained in article 6 letter b) and article 22 letter b) of the Italian consumer code.

Does the law in your country impose on advertisers an obligation to provide information about price? Is the obligation limited in certain respects?

Yes, this specific obligation is contained in article 13 letter b) and article 22 letter c) of the Italian consumer code. This obligation applies to all products.

Is an infringement of specific obligations to provide information considered a violation of general rules against unfair competition?

Yes, the violation to provide information could, according to Italian law, be considered a violation of unfair competition, according to article 2598 paragraph 3 of the Italian civil code, provided that in the specific case the omission to provide information may be considered contrary to principles of fairness.

Does the law in your country set out any requirements as to the way in which information should be provided by advertisers?

According to article 5 point 3 of the Italian consumer code the information that the advertiser has to provide shall be adequate to the specific communication tool, and shall be expressed in a clear and comprehensible way and moreover the information shall be expressed in the Italian language.

Does the character of the medium through which the advertisement is communicated to consumers affect the scope of existing obligations of advertisers to provide information?

Yes

Is an explicit provision in this sense laid down in statutory law or is the importance of the advertising medium reflected in case law?

In Italian law there are explicit provisions laid down in statutory law with reference to television sales (article 29 to 32 of Italian consumer law) to TV and radio (“testo unico della radiotelevisione” law July 31 2005, n. 177), internet advertisement (law April 9 2003, n. 70).

Is the scope of the obligation to provide information limited or extended in respect to TV advertising, advertising via internet, advertising via mobile phones, other media?

In the Italian statutory law there is an extension of the scope of protection with respect to TV and internet with particular reference to information regarding specific issues such as the protection of children and the respect of nondiscrimination.

If your country is a member of the European Union, in what way has the provision of article 7.3 UCPT directive been transposed in you national law?

The provision of article 7.3 of the directive has been literarily transposed in our national law in article 22.3 of the Italian consumer code.

How are the existing positive obligations to provide information enforced?

The positive obligations to provide information are enforced in Italy by way of negative injunctions such as cease and desist injunctions, positive injunctions to which the professional has to comply, temporary suspension of the activity and administrative fines.

What (if any) is the liability of advertising agencies and the media trough which the advertising is communicated for advertising that fail to comply with information obligations imposed on advertisers?

The Italian consumer code has originally foreseen a subsidiary liability for the violation of the obligation to provide information together on the owner of the TV or radio station and on the author of the TV or radio show. The abovementioned subsidiary responsibility was abandoned in the Italian consumer code as modified by law august 2 2007, n. 146.

What private and public bodies are granted standing to sue or competence to enforce the information obligations viz advertisers?

The Italian competition authority, consumer associations, single consumers and competitors

What is the role of self regulation and of voluntary advertising codes and their relation to statutory information duties imposed on advertisers?.

The Italian Consumer Code explicitly foresees the possibility for the advertisers to establish specific self regulation association to which submit any issue regarding misleading advertisement. Moreover in Italy there is a specific association named “Giurì della Pubblicità” that counts almost every important company in the Italian market which has gained a big importance in the judging on advertisement issues. With reference to the above mentioned “Giurì della Pubblicità” it is to mention that the principles of law affirmed by the “Giurì della Pubblicità” are of specific importance and constantly referred to in the Italian Courts decisions when judging on unfair competition issues.

Is there any discussion in your country on the relationship between a positive obligation to provide information in advertising and freedom of commercial communication or other constitutionally protected rights and freedoms?

What are the arguments advanced in the legal policy debate in your country for and against imposing positive information duties on advertisers?

In Italy there is a strong awareness of the economical costs of “information asymmetries” both in the legal policy debate and in the Italian doctrine; In particular, it is clear that “information asymmetries” can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market. More specifically, the unfair commercial practices is considered to harm consumers economic interest by affecting consumers perceptions of products and influencing their behaviour by impairing the consumers ability to make an informed decision. Moreover, according to the Italian policy debate, it is also understood that by means of consumer protection, there also is an indirect protection of legitimate businesses from their competitors who do not play by the rules.

In conclusion, in Italy there is a strong awareness on the necessity, in order to establish an efficient market, to impose over the advertisers specific obligations to provide information related to products and services; It is also clear, according to the public debate in Italy, that a serious protection of the consumer against unfair marketing practices is also necessary and useful for the protection of fair enterprisers against unfair behaviors of their competitors.

Does the topic raise any special or additional issue in your jurisdiction, apart from the matters already covered in your answers to the questionnaire?

No