MALTA Law and Practice Contributed by: Karl Tanti and Christine Borg Millo, AE Legal
• the advertiser – including who they are, their quali - fications, assets, rights (like trade marks or pat - ents), or any awards or recognition they claim. Further, professional service providers and interme - diaries such as marketing consultants, brand manag - ers, or public relations firms may face liability where their actions contribute to the design and/or approval of deceptive material. In certain regulated industries, such as financial services, pharmaceuticals, or gam - bling, the scope of liability is of course, even wider. Here, directors, officers, and licensed operators them - selves may be held directly responsible for the content of their advertising, with regulatory authorities such as the MFSA, the Medicines Authority, and the MGA empowered to impose sanctions, revoke licences, or issue personal penalties for breaches. The law more broadly addresses misleading and unfair commercial practices, following the transposi - tion of the EU Unfair Commercial Practices Directive (2005/29/EC), which protects consumers from unfair business-to-consumer practices, ensuring a high level of consumer protection and fair competition. 1.4 What Is Advertising? Generally, advertising encompasses any form of communication made in the course of trade, busi - ness, craft, or profession directly connected with the promotion, sale or supply of a product to consum - ers, that is intended to promote, directly or indirectly, the goods, services, image, or reputation of a trader. The definition is not confined to traditional media but extends across all platforms and forms of marketing communication. The Commercial Code and the Consumer Affairs Act both define “advertising” as “any form of representa - tion, including a catalogue, a circular and a price list, about a trade, business, craft or profession in order to promote the supply or transfer of goods or services, immovable property, rights or obligations.” The Broadcasting Act similarly defines advertising in audiovisual media services as any form of announce - ment broadcast in return for payment or other con - sideration, with the objective of promoting goods, services, or ideas by a public or private undertaking.
In addition, certain industry-specific communications are automatically treated as advertising. 1.5 Pre-Approvals Pre-approvals are not generally required from gov - ernment or other authorities in relation to most forms of advertising. Businesses are expected to comply with the rules set out in the Consumer Affairs Act, the Broadcasting Act, and sector-specific legislation, and enforcement usually takes place after publication if a complaint or breach is identified. 1.6 Intellectual Property and Publicity Rights The intellectual property rights under Maltese law are accorded through various legislation, such as the Commercial Code, the Copyright Act, the Trademarks Act, and the Patents and Designs Act (Chapter 417 of the Laws of Malta). Firstly, in relation to intellectual property, the Copy - right Act (Chapter 415 of the Laws of Malta) protects literary, artistic, photographic, and audiovisual works. Using copyrighted material such as photographs, artwork, music, or videos in advertising without the author’s consent constitutes copyright infringement and may expose the advertiser to civil liability (under Chapter IX of the Act). Likewise, the Trademarks Act (Chapter 597 of the Laws of Malta) prohibits the unau - thorised use of registered trade marks, logos, or brand identifiers in advertising, particularly where such use misleads consumers or creates a false association with the rights-holder. Secondly, the use of an individual’s name, image, voice, or likeness is protected under data protection law. Under the Data Protection Act (Chapter 586) and the GDPR, an individual’s image, voice, and other per - sonal identifiers are treated as “personal data”. This means that their use in advertising requires a valid legal basis, such as the individual’s explicit consent. Using such personal attributes without permission could amount to a data protection breach, exposing the advertiser to significant administrative fines by the Information and Data Protection Commissioner (IDPC).
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