JOHN CARLOS I

KING OF SPAIN

To all who present it and understand it.

Sabed: that the General Courts have approved and I come to sanction the following Law:

The accession of Spain to the European Communities implies, among others, the commitment to update Spanish legislation in those areas where it has to be harmonised with the Community.

10 September 1984 the Council of the European Communities adopted a Directive on the harmonization of the laws, regulations and administrative provisions of the Member States relating to the misleading advertising.

The general legislation on the subject is constituted in Spain by Law 61/1964 of 11 June, approving the Statute of the Advertising, a rule whose articles have fallen largely disused, because of the lack of flexibility needed to adapt to a field such as advertising, especially dynamic, and to respond to political and administrative budgets far removed from those of the Constitution.

The preceding circumstances advise the adoption of a new general law on the subject, which will replace the previous Statute in its entirety and establish the appropriate course for the formation of case law in its application. by the Judges and Courts.

In this regard, the State has the competence to regulate such matters in accordance with the provisions of Article 149, 1, 1, 6. and 8. of the Constitution.

Advertising, by its very nature, is an activity that crosses borders.

The Law has not only followed the Community guidelines in this field, but has also sought to draw inspiration from the various solutions in place in the inter-European legal area.

The content of the Law is distributed in four Titles. General provisions and definitions or types of unlawful advertising are laid down in Titles I and II. The various forms of administrative intervention in the cases of products, goods, activities or services liable to generate risks for the life or safety of persons are also articulated.

In Title III, constituted by rules of private law, are established those specialties of the advertising contracts that it has seemed interesting to emphasize on the common fund of the civil and commercial legislation.

These rules are characterized by their sobriety. Nevertheless, the main figures of contracts and subjects of the advertising activity that the practice of the sector has been consecrating have been collected.

In Title IV, the rules of a procedural nature that have to govern in matters of punishment and repression of illegal advertising are established, without prejudice to the voluntary control of advertising that may have been carried out by Self-discipline agencies.

In this regard, the jurisdiction is conferred on the ordinary jurisdiction to settle disputes arising from such unlawful advertising in the terms of Articles 3. º 8. This is one of the innovations introduced by the Law, falling for a different option than that provided for in the Staff Regulations of 1964. The latter provides for the figure of an administrative body, "The Central Advertising Jury", which is competent to understand the issues arising from the advertising activity. For obvious reasons, among other things, the constitutional ones deriving from the provisions of Article 24.2 in which a principle of the right to the ordinary judge is fixed, as well as those arising from the autonomous structure of the State, have been chosen. for attributing that competence to the Ordinary Courts.

In accordance with Articles 4 et seq. of Directive 84/450 of the EEC on misleading advertising, a summary procedure for obtaining the cessation of advertising is instituted in this Title. illicit.

The process of cessation is articulated as quickly as possible, without the necessary guarantees for the exercise of an activity of as much economic and social transcendence as the advertising. The procedure will be carried out in accordance with the provisions of the Law on Civil Procedure of 3 February 1981 for lower-level trials, with a series of amendments, inspired by the Law of 26 March 1984, Law 2/1984 the Rectification, and in the Community guidelines, and aimed at adapting the judicial practice to the peculiarities of the advertising phenomenon.

The judge, served all the interests involved and, in particular, the general interest, may agree to the provisional cessation or prohibition of unlawful advertising, as well as to adopt a series of measures aimed at correcting the effects it could have caused.

Finally, in the Transitional Provision it is established that the rules governing the advertising of the products referred to in Article 8.o shall remain in force until such time as they are amended in order to adapt them to provided in this Law.

The Repeal Provision provides for the full repeal of the 1964 Advertising Statute and for how many rules will be opposed to the provisions of the new Law.

TITLE FIRST

General provisions

Article 1.

Advertising shall be governed by the provisions of this Law and the special rules governing certain advertising activities.

Article 2.

For the purposes of this Law, it shall be understood by:

-Advertising: All forms of communication carried out by a natural or legal person, public or private, in the exercise of a commercial, industrial, craft or professional activity, in order to promote directly or indirect the procurement of movable or immovable property, services, rights and obligations.

-Recipients: The persons to whom the advertising message is directed or to which it is reached.

TITLE II

From illicit advertising

Article 3.

It is illegal:

(a) Advertising that atents to the dignity of the person or violates the values and rights recognized in the Constitution, especially as regards children, youth and women.

b) Misleading advertising.

c) Unfair advertising.

d) Subliminal advertising.

e) The one that infringes the provisions of the regulations that regulate the advertising of certain products, goods, activities or services.

Article 4.

It is misleading advertising that in any way, including its presentation, induces or can mislead its recipients, being able to affect their economic behavior, or harm or be able to harm a competitor.

It is also misleading advertising to silence fundamental data of goods, activities or services when such omission leads to error of the recipients.

Article 5.

To determine whether an advertisement is misleading, all its elements and primarily its indications concerning:

1. The characteristics of the goods, activities or services, such as:

a) Origin or geographical or commercial origin, nature, composition, destination, purpose, suitability, availability and novelty.

b) Quality, quantity, category, specifications and denomination.

c) Mode and date of manufacture, supply or delivery.

d) Results that can be expected from their use.

e) Results and essential characteristics of the tests or controls of the goods or services.

f) Nocidality or dangerousness.

2. Full price or budget or mode of fixing the same.

3. Legal and economic conditions for the acquisition, use and delivery of the goods or the provision of services.

4. Reasons for the offer.

5. Nature, qualifications and rights of the advertiser, in particular as regards:

a) Identity, heritage and professional qualifications.

b) Industrial or intellectual property rights.

c) Awards or distinctions received.

6. Post-sales services.

Article 6.

It's disloyal advertising:

(a) The content, form of presentation or dissemination causes disrepute, denigration or direct or indirect disparagement of a person, company or of its products, services or activities.

(b) The one that leads to confusion with the companies, activities, products, names, marks or other distinctive signs of the competitors, as well as the one that makes unjustified use of the denomination, initials, marks or other companies or institutions, and, in general, that which is contrary to the rules of correction and good commercial uses.

c) comparative advertising where it is not supported by essential, related and objectively demonstrable characteristics of the goods or services, or when goods or services are contracted with other non-similar or unknown; or limited market share.

Article 7.

For the purposes of this Law, it will be subliminal advertising which, by means of techniques of production of stimuli of intensities bordering on the thresholds of the senses or analogous, can act on the target audience without being consciously perceived.

Article 8.

1. The advertising of materials or medical devices and of those other subject to technical and health regulations, as well as the products, goods, activities and services that are liable to generate risks for the health or safety of the persons or their assets, or advertising on games of luck, send or chance, may be regulated by their special rules or subject to the regime of prior administrative authorization. Such a scheme may also be established where the protection of constitutionally recognised values and rights so requires.

2. Regulations developing the provisions of the preceding number and those which, when regulating a product or service, contain rules on their advertising shall specify:

(a) The nature and characteristics of the products, goods, activities and services the advertising of which is subject to regulation.

These regulations will lay down the requirement that the advertising of these products should include the risks arising from the normal use of these products.

b) The way and conditions for advertising messages to be broadcast.

(c) The requirements for authorisation and, where applicable, the registration of the advertising, where it has been subject to the system of prior administrative authorisation.

3. The granting of authorisations must comply with the principles of fair competition, so that other competitors cannot be affected.

Denial of authorization requests should be motivated.

Once the time of the response has expired, the special rules for the authorization files shall be deemed to be the same for positive administrative silence.

4. Narcotic, psychotropic and medicinal products intended for the consumption of persons and animals may be subject to advertising only in the cases, forms and conditions laid down in the special rules governing them.

5. The advertising of tobacco, and the advertising of alcoholic beverages of more than 20 degrees centigrade, is prohibited by means of television.

Advertising of alcoholic beverages and tobacco in those places where their sale or consumption is prohibited is prohibited.

The form, content and conditions of the advertising of tobacco and alcoholic beverages will be strictly regulated in order to protect the health and safety of persons taking into account the target subjects, the direct or indirect induction into their indiscriminate consumption and attention to educational, health and sports areas.

For the same purposes as the previous paragraph, the Government may regulate, extend the prohibition provided for in this issue to beverages with an alcoholic strength of less than 20 degrees.

6. Failure to comply with the special rules governing the advertising of the goods, goods, activities and services referred to in the preceding paragraphs shall be considered to be in breach of the effects provided for in the General Law for the Defense of Consumers and Users and the General Health Law.

In the procedure for the elaboration of the general provisions referred to in paragraph 2 of this article, the associations of agencies, advertisers and consumers and users will be heard.

TITLE III

From Advertising Procurement

CHAPTER FIRST

General provisions

Article 9.

Advertising contracts shall be governed by the rules contained in this Title, and in their absence by the general rules of Common Law. The provisions of this Regulation shall apply to all advertising contracts, even if they relate to advertising activities not covered by Article 2.

Article 10.

For the purposes of this Act:

-It is the natural or legal person in whose interest the advertising is carried out.

-It is advertising agencies natural or legal persons who engage professionally and in an organized way to create, prepare, program or execute advertising on behalf of an advertiser.

They will have the consideration of means of advertising natural or legal persons, public or private, which, in a customary and organized way, are dedicated to the dissemination of advertising through the media or media social whose ownership they hold.

Article 11.

The media will significantly disclaim the claims made within their informative function of those that they do as simple advertising vehicles. Advertisers must also unequivocally disclose the advertising character of their advertisements.

Article 12.

The advertiser has the right to control the execution of the advertising campaign.

In order to guarantee this right, non-profit organizations legally constituted in a tripartite manner by advertisers, advertising agencies and broadcast media will be able to check the dissemination of the advertising media and, in particular, figures for the circulation and sale of periodicals.

This check will be done on a voluntary basis.

Article 13.

In advertising contracts, no exemption clauses, imputation or limitation of liability to third parties in which the parties may incur as a result of advertising may be included.

Article 14.

Any clause shall not be put in place whereby, directly or indirectly, the economic performance or commercial results of the advertising are guaranteed, or the requirement of liability for this cause is foreseen.

CHAPTER II

From Advertising Contracts

Section 1. Ad Contract

Article 15.

Advertising contract is the one by which an advertiser instructs an advertising agency, by way of consideration, to run advertising and to create, prepare or schedule it.

When the agency performs advertising creations, the rules of the advertising creation contract will also apply.

Article 16.

The advertiser shall refrain from using any idea, information or publicity material supplied by the agency for purposes other than those agreed. The same obligation shall be made by the agency in respect of the information or publicity material provided by the advertiser for the purposes of the contract.

Article 17.

If the advertising does not fit in its essential elements to the terms of the contract or to the express instructions of the advertiser, it may require a reduction of the consideration or the total or partial repetition of the advertising in the terms agreed upon, and the compensation, in one and the other case, of the damages that have been incurred.

Article 18.

If the agency unreasonably does not perform the committed benefit or does so outside the established term, the advertiser may terminate the contract and require the return of the paid, as well as the damages and damages. damages.

Also, if the advertiser resolves or fails to unilaterally and unilaterally the contract with the agency without the cause of force majeure or is only partially or defective, the agency may require the compensation for damages to which there is a place.

The termination of the contract will not affect the rights of the agency for the advertising carried out prior to compliance.

Section 2. Ad Broadcast Contract

Article 19.

Advertising contract is the one by which, in return for a consideration fixed in pre-established rates, a means is required in favour of an advertiser or agency to permit the advertising use of units of space or time available and to develop the technical activity necessary to achieve the advertising result.

Article 20.

If the medium, for reasons attributable to it, will comply with an order with alteration, defect or impairment of some of its essential elements, it will be obliged to execute again the advertising in the agreed terms. If the repetition is not possible, the advertiser or the agency may require the reduction of the price and compensation for the damage caused.

Article 21.

Except in case of force majeure, where the media does not broadcast the advertising, the advertiser or the agency may choose to demand a later dissemination under the same agreed conditions or to denounce the contract with the return of the paid for the unreleased advertising. In both cases, the environment must compensate for the damage and damage caused.

If the lack of dissemination is imputable to the advertiser or the agency, the person responsible will be obliged to indemnify the medium and to satisfy him in full the price, except that the medium has occupied totally or partially with another advertising the contracted time units or space.

Section 3. Ad Creation Contract

Article 22.

Advertising contract is the one by which, in return for consideration, a natural or legal person is obliged in favour of an advertiser or agency to devise and develop an advertising campaign project, a part of the same or any other advertising element.

Article 23.

Advertising creations may enjoy industrial or intellectual property rights when they meet the requirements of the provisions in force.

By way of derogation from the foregoing paragraph, the rights of exploitation of the advertising creations shall be presumed, unless otherwise agreed, to be transferred exclusively to the advertiser or agency under the contract of creation advertising and for the intended purposes in the same.

Section 4. Sponsorship Contract

Article 24.

The advertising sponsorship contract is the one for which the sponsor, in exchange for an economic aid for the performance of its sporting, beneficial, cultural, scientific or other activity, is committed to collaborate in the Sponsor Advertising.

The advertising sponsorship contract shall be governed by the rules of the advertising dissemination contract as soon as they are applicable to it.

TITLE IV

From the cessation and rectification action and the procedures

Article 25.

1. The competent administrative bodies, consumer and user associations, natural or legal persons who are affected and, in general, those who have a subjective right or a legitimate interest may request the advertiser to cessation or, where appropriate, the rectification of unlawful advertising.

2. The application for cessation or rectification shall be made in writing in such a way as to permit the true record of its date, its receipt and its content.

Article 26.

1. The cessation may be requested from the beginning until the end of the advertising activity.

2. Within three days of receipt of the request, the advertiser shall inform the applicant in a feisty manner of his willingness to cease in the advertising activity and shall effectively proceed to such cessation.

3. In cases of silence or refusal, or where the cessation has not taken place, the applicant may, on grounds of having made the request for termination, bring the action and rights referred to in Articles 28 and next.

Article 27.

1. The rectification may be requested from the start of the advertising activity up to seven days after the end of the advertising activity.

2. The advertiser shall, within three days after receipt of the written request for rectification, notify the sender of his or her disposition to proceed to the rectification and in the terms of this or, in case of contrary, their refusal to rectify.

3. If the answer is positive and the applicant accepts the terms of the proposal, the advertiser shall proceed to the rectification within seven days of the acceptance of the proposal.

4. If the reply refuses the rectification, or is not produced within the period provided for in paragraph 2 by the requested party, or, even having accepted it, the rectification does not take place in the agreed terms or within the deadlines provided for in this Law, the applicant may sue the requested person before the Judge, justifying the application for rectification, in accordance with the provisions of this Law.

Article 28.

Controversies arising from unlawful advertising in the terms of Articles 3 to 8 shall be settled by the organs of the ordinary jurisdiction.

Article 29.

The processes referred to in the previous article shall be processed in accordance with the provisions of the Civil Procedure for the Minor Judgments, with the following peculiarities:

(a) The Judge may, on his own initiative and without a hearing from the defendant, order the application to be inadmissible when he considers it manifestly unfounded.

(b) Without prejudice to what can be agreed for the best to provide, the Judge may, at the time of the decision on receipt of evidence, require the advertiser to provide the evidence relating to the accuracy of the data. materials contained in the advertising, provided that it appreciates that such a requirement is in line with the circumstances of the case, addressed to the legitimate interests of the advertiser and the other parties to the process.

c) The Judge may consider the facts as inaccurate, where the evidence referred to in the preceding paragraph is not provided or where he considers that the evidence is insufficient.

Article 30.

1. At the request of the applicant, the Judge, when it is appropriate, has taken care of all the interests involved, and in particular the general interest, even if there is no actual damage or no intention or negligence on the part of the applicant. part of the advertiser, may be of a precautionary nature:

(a) Order the provisional cessation of unlawful advertising or take the necessary steps to obtain such cessation.

Where advertising has been expressly prohibited or when it relates to products, goods, activities or services which may cause serious risks to the health or safety of persons or to their assets or The court may order the provisional cessation within 24 hours of the filing of the application.

b) To temporarily prohibit such advertising or to adopt appropriate forecasts to prevent its dissemination, where it is imminent, even if it has not yet come to the public's knowledge.

2. The measures for the cessation or prohibition of advertising shall be adopted in accordance with the provisions of Article 1,428 of the Law on Civil Procedure.

Article 31.

The case-estimate statement must contain some or some of the following statements:

a) Concede to the advertiser a deadline to delete the illicit elements of the advertising.

b) Order the cessation or definitive prohibition of unlawful advertising.

c) Order the total or partial publication of the judgment in the form it deems appropriate and at the expense of the advertiser.

d) Require the dissemination of corrective advertising when the seriousness of the case so requires and whenever it can contribute to the repair of the effects of the illicit advertising, determining the content of that and the modalities and deadline for dissemination.

Article 32.

The provisions of the foregoing articles shall be compatible with the exercise of the civil, criminal, administrative or other order that corresponds to and with the persecution and punishment as fraud of the misleading advertising by the competent administrative bodies for the protection and defence of consumers and users.

Article 33.

1. The actor may, in his application, accumulate other claims arising from the same advertising activity of the advertiser, provided that by its nature or amount they are not incompatible with each other or with the actions referred to in the preceding articles.

2. The filing of a prior administrative complaint shall not be necessary in order to exercise the cessation or rectification of unlawful advertising when the advertiser is an administrative body or a public body.

TRANSIENT DISPOSITION

The rules governing the advertising of the products referred to in Article 8 shall remain in force until such time as they are amended in order to adapt them to the provisions of this Law.

REPEAL PROVISION

Law 61/1964, of 11 June, is hereby repealed and the Statute of Advertising is hereby approved, and any provisions shall be contrary to the provisions of this Law.

Therefore,

I command all Spaniards, individuals and authorities, to keep and keep this Law.

Palacio de la Zarzuela, Madrid on 11 November 1988.

JOHN CARLOS R.

The President of the Government,

FELIPE GONZÁLEZ MARQUEZ