Estonia’s legislators have drafted an advertising bill that could drastically reduce the scope of advertisers to target particular groups of consumers. If passed it would also introduce guidelines on the ‘good morals’ required of advertisements. Evelin Parn-Lee reports
Estonia’s advertising laws have been in force for almost a decade. Based on heavy criticism, directed mainly at legal uncertainty and insufficient supervision of the current law, a working group within the Estonian Ministry of Economic Affairs and Communications has ..........
........... prepared a new draft advertisement law.
The legal definition of advertising will remain almost unchanged except the draft law prescribes expressis verbis, meaning information published for free can also constitute advertising. Unlike the current law, the draft excludes political information from its applicability, more specifically electoral advertising.
The chapter addressing the basic requirements of advertising has been changed considerably. The current act provides that the advertisement shall clearly set out information on the advertiser, where an advertiser is deemed to be a person who presents, exhibits or transmits advertising to the public, or produces, distributes or commissions the advertising. In practice this has proved to be impractical. Therefore, according to the draft law the advertisement shall provide information in the form of a name, business name or trademark, of the person who commissions the advertisement only.
The draft law proposes a new regulation on ‘continued advertisement’. This relates to when an advertisement is published in a number of stages and the person who commissions the advertisement is not obvious in the first stage(s) of the advertisement. The draft law requires that the identity in the form of name, business name or trademark of the person who ordered the advertisement must become evident within 15 days of publication of the first advertisement.
The draft law also clarifies what is and is not an advertisement. Advertisement is not information about goods, services or respective sale conditions, which are acquired at the point of sale. Also, a denotation of the point of sale with a trademark of the entrepreneur is not to be considered an advertisement under the draft law.
The draft no longer includes the terms "offensive, denigratory and surreptitious advertising". Instead, requirements and prohibitions for the content of advertisements are provided. For example, the advertising must not, inter alia, contradict with good morals and custom, call on people to act unlawfully or to violate prevailing standards of decency, justify violation of law or humiliate law-abiding behaviour. The term good morals and custom is not defined anywhere and relies mainly on court practice.
Advertising may not suggest goods or services are able to heal, prevent or alleviate diseases, except as provided by law. For example, it is allowed to claim in the advertisement that "whole grain products improve digestibility", however, it is prohibited to claim that a product "lowers cholesterol" or "heals osteoporosis".
Advertising cannot ignore the principle of sexual equality. According to the draft law, the advertising cannot degrade a sex or depict a sex as being dominating or submissive. Additionally, in advertising it is not allowed to depict persons as sexual objects, present indecent nudity, use sexist expressions or visualise in terms of sound or image a sexual act.
Also, the draft law prohibits advertising that plays on people’s superstitions or exploits the credulity of the target group, e.g. children. In addition, specific rules apply to advertisements, mainly children. For instance, advertising is prohibited, inter alia, in the premises of childcare institutions and schools. Unfortunately, neither the draft law nor the working group have explained in more detail what this means. For example, it is not clear whether a logo on a toy, a sporting tool or a clothing item, which certainly are used in above-mentioned places, are considered an advertisement pursuant to the draft law.
The draft law also proposes that the advertisement, the target audience, which is mostly made up of children, may not exhort children to sign contracts of purchase and sale or lease contracts of goods or services. Entrepreneurs have, however, claimed that the working group has gone too far and will unjustifiably restrict the advertisement of certain sweets, soft drinks and clothes. Exaggerating a bit, one might claim that advertising a zoo and an amusement park is, according to the draft law, prohibited.
The current act prohibits advertising of tobacco products, however, it allows indirect advertising of products bearing trademark related to tobacco products. According to the draft law all forms of advertising for tobacco products, including exposure of a trademark in order to advertise tobacco products, is prohibited. Advertising of alcohol products is not per se prohibited, however, is subject to strict rules. For example, the alcohol products may not be advertised on television from 7am to 9pm.
The draft has been under public discussion for some time now. However, it seems to be a topic out of the current government’s priority list. Currently, it is on review cycle between ministries and other authorities concerned and is expected to be submitted to the Parliament soon. Whether or not the draft law will be enforced from 1 January, 2006, as set forth in the draft law itself, remains to be seen.
Evelin Parn-Lee is a senior associate at Sorainen Law Offices in Tallinn.