SPAIN Law and Practice Contributed by: Rubén Canales and Ignacio Temiño, Abril Abogados
prohibited to offer any kind of promotional gifts in the medicinal and pharmaceutical sectors. In any case, it is considered a misleading commercial practice and, thus, unfair, to describe a product as “free”, “without charge” or similar if the consumer has to pay anything beyond the unavoidable expenses of responding to the offer and arranging delivery. 3. Limitations and Special Laws 3.1 Representation and Stereotypes in Advertising The Spanish general advertising law considers unlaw - ful advertising to be advertising that violates the dig - nity of the person or violates the values and rights recognised in the Spanish Constitution. In particular, it expressly prohibits advertisements that present women in a degrading manner, either by using their bodies or parts thereof as mere objects unrelated to the product to be promoted, or by using their image associated with stereotyped behaviours, thus promot - ing violence against people. Likewise, any form of advertising that promotes vio - lence or discrimination in any form against minors, or promotes stereotypes of a sexist, racist, aesthetic, homophobic or transphobic nature or on the grounds of disability, as well as that which promotes prostitu - tion, is considered illegal advertising. Advertising that promotes commercial practices of surrogacy is also considered unlawful. 3.2 Children Advertising directed at children should be handled with extreme diligence. In addition to complying with the general advertising rules, advertising aimed at minors should not exploit the naivety, immaturity, inexperience or credulity of children or adolescents, nor take advantage of their sense of loyalty, nor con - tain statements or visual presentations that may harm them mentally, morally or physically. According to the General Advertising Act, advertis - ing directed at minors that incites them to purchase
a good or service by exploiting their inexperience or credulity, or in which they appear to persuade parents or guardians to purchase, is unlawful. Children may not, without good reason, be presented in dangerous situations. It must not be misleading as to the char - acteristics of the products, their safety, or the ability and skills necessary for the child to use them without harm to himself/herself or others. On the other hand, advertising through video-sharing services via platforms that encourage harmful or dis - ruptive behaviour in minors requires age verification and limiting access to users of legal age. The Self-Regulation Code for Children’s Toy Adver - tising, signed by the Ministry of Consumer Affairs, the Spanish Association of Toy Manufacturers (AEFJ) and Autocontrol, aims to make toy commercials more egalitarian, truthful and constructive. It promotes a diverse, equal, and stereotype-free portrayal of chil - dren. To achieve this, the code prohibits the depic - tion of girls with sexualised connotations and bans the exclusive association of certain toys – such as those representing caregiving, domestic work, or beauty – with girls, and toys linked to action, physical activity, or technology with boys. In addition: • The use of characters such as TV presenters or participants in TV programmes, characters – real or fictional – from films or series, characters from sports or music, participants in talent shows, etc, in toy advertising aimed at minors is only possi - ble if the toy promoted is directly related to these characters or to a characteristic element of these characters. • The sending of advertisements to children under the age of 14 via email or other equivalent means of individual communication by the advertiser is not permitted unless expressly requested or authorised by their parent or guardian. • The sending of advertisements to mobile devices (including mobile phones, handheld game con - soles, tablets and smart watches) to children under the age of 14 is not permitted. 3.3 Dark Patterns In Spain, there are no special laws or guidance related to dark patterns in advertising. However, such prac -
257 CHAMBERS.COM
Powered by FlippingBook