BRAZIL Law and Practice Contributed by: Lucia Ancona Lopez de Magalhães Dias, Maria Fernanda Saab Nersessian and Camila Emi Tomimatsu, Magalhães e Dias
Self-Regulation All parties participating in the creative advertising pro - cess can be held liable at the level of industry self- regulation, receiving CONAR guidance according to their liability. 1.4 What Is Advertising? What is considered advertising in Brazil is extremely broad in scope, covering all forms of media including sales promotions, packages, point-of-sale materials, free samples in the domain of retail, labelling and slo - gans, sponsored messages on blogs, social media and product placement. 1.5 Pre-Approvals In principle, Brazilian legislation does not require pre- approvals from the government or other authorities before running advertising. However, for products regulated by a health authority, the use of efficacy claims is subject to notification and, in some cases, only claims pre-approved by the authority may be used on submission of a prior study that substanti - ates such claims (see 9.1 Regulated Products ). 1.6 Intellectual Property and Publicity Rights Copyright Law (Law 9,610/1998) Music, drawings, photographs and graphical effects may only be used in advertising with the prior and express authorisation of the author to use their work (Articles 28 and 29), except in cases where the work is in the public domain (70 years from 1st of January of the year following the author’s death – Article 41), is from deceased authors who have not left successors or is that of an unknown author (Article 45). Graphics – ie, fonts used for text messages applied in advertising communications – are also protected by copyright law, since they are considered as “software” or computer programmes. Trade marks Under Law 9.279/96, a competitor’s brand cannot be used in advertising (Article 130, III). The excep - tion is comparative advertising focusing on a specific attribute of the compared product or service (see 4. Comparative Advertising and Ambush Marketing ).
CONAR specifies the need to respect copyrights and also protects creativity and originality, condemning any advertisement based on plagiarism or imitation (Articles 38, 39 and 41). 1.7 Self-Regulatory Authorities CONAR is responsible for the supervision of advertis - ing compliance under the CBAP. Self-regulatory rules, despite not being enforceable as law, bind all CONAR signatories, besides serving as a subsidiary source of law for judicial and administrative cases. The deci - sion on the merits is rendered, on average, within 60 days, with the possibility of a preliminary injunction being granted – which will immediately be enforced Proceedings can be initiated either on CONAR’s own initiative, by its associates (advertisers, agencies and communication vehicles) or by consumer com - plaint. Once the representation is instituted, the case is judged by one of the Ethics Council Chambers. Regardless of the result, a so-called ordinary appeal may be filed to the Special Appeal Chamber by the parties or, in cases initiated on CONAR’s own initia - tive, by CONAR’s executive director. by vehicles and advertisers. Proceedings and Processing A so-called extraordinary appeal is admitted only exceptionally, and may be filed by the losing party if (i) the decision rendered in the ordinary appeal was not unanimous (divergence) or (ii) it was based on an error resulting from procedural acts and documents. Remedies Should any advertisement be found in breach of CBAP rules, the Ethics Council may apply the follow - ing sanctions, cumulatively or otherwise: • a warning to the advertiser and its agency, or even to a celebrity or influencer who has been hired; • an amendment of, or change to, the advertisement; • cessation of the advertising campaign and the sub - poenaing of communication vehicles to discontinue display of the advert, for better enforcement of the remedy; and • although unusual, disclosure of CONAR’s posi - tion to the public (through the media) regarding the advertiser, agency and vehicle, in the case of
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