SPAIN Law and Practice Contributed by: Rubén Canales and Ignacio Temiño, Abril Abogados
1. Legal Framework and Regulatory Bodies 1.1 Primary Laws and Regulation Advertising practices in Spain are primarily regulated by: • the General Advertising Act (Law 34/1988); • the Unfair Competition Act (Law 3/1991); • the General Audio-Visual Communication Act (Law 13/2022); and • the General Law for the Defence of Consumers and Users (Royal Decree 1/2007). However, special regulations covering specific require - ments for certain products (ie, alcohol, tobacco, food, etc) must also be taken into account. 1.2 Enforcement and Regulatory Authorities The regulatory authorities responsible in Spain for enforcing the laws and regulations governing adver - tising practices are as follows: • Autocontrol: Autocontrol is the independent adver - tising self-regulatory organisation (SRO) in Spain. The Autocontrol Jury is the independent out-of- court body in charge of adjudicating on complaints submitted on advertising issues. The Jury’s deci - sions tend to be conservative and are only bind - ing on members of Autocontrol or on those non- members who expressly accept the competence of the Jury. Autocontrol does not impose fines. Where the respondent is not a member of Autocontrol and does not expressly agree to arbitration, the deci - sion shall not be binding. In such cases, Autocon - trol will issue an opinion as to whether or not the advertisement in question infringes its codes and the applicable regulations. Civil courts often adhere to such decisions. • Courts: The courts may, in addition to declaring the activity to be unfair, order it to cease, prohibit its repetition, and remove the effects produced by the unfair conduct. They may also order the rectifica - tion of misleading, incorrect or false information, as well as compensation for damages caused by the unfair conduct if the agent has acted with malice or negligence. The court may also, at the defendant’s
expense, order the publication of all or part of the judgment or a declaration of rectification. • Public Administration: The ministries and depart - ments of the autonomous communities are empowered to judge commercial acts and con - duct classified as infringements under the regime of the Consumer Protection Act. Penalties for these infringements range from fines of EUR150 to EUR1 million. In addition to the legal sanctions, the infringing advertiser may also be obliged to return the complaining party to the position it was in before the infringing act, without prejudice to compensation for damages. Advertising relating to goods or services with specific regulation (medi - cines, food, gambling, finance, etc) is supervised by the competent authorities in the respective fields, which means that special administrations can control and take decisions on the contents and continuation of certain advertising activities, includ - ing imposing sanctions on advertisers in some cases. • The Spanish National Markets and Competition Commission ( Comisión Nacional de los Mercados y la Competencia , or CNMC): The CNMC ensures that audiovisual content complies with legisla - tion on the protection of minors, advertising, and accessibility. It also resolves sanctioning cases and reports related to violations of the regulations. The CNMC can impose fines of up to EUR1,500,000, depending on the seriousness of the infringement, the channel of dissemination of the infringing con - tent and the revenue generated by the infringer. 1.3 Liability for Deceptive Advertising The advertiser is ultimately responsible for decep - tive advertising, and they are the ones who will face legal action if their advertising is deemed deceptive. In some cases, audiovisual media service providers may also be held liable for deceptive advertising. 1.4 What Is Advertising? According to the Spanish General Advertising Act, advertising is considered to be any form of commu - nication made by a natural or legal person, public or private, in the exercise of a trade, business, artisanal or professional activity, with the aim of directly or indi - rectly promoting the contracting of goods, services, rights and obligations.
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