Changes to advertising rules: what can and cannot be advertised
04.05.2023 18:19
Due to the rapid development of digital communications and Ukraine's desire to comply with European legislative standards, the advertising sector in our country is gradually transforming.
Recently, the Verkhovna Rada registered Draft Law No. 9206 on Amendments to the Law of Ukraine "On Advertising" to implement the norms of European legislation into the national legislation of Ukraine by implementing certain provisions of the EU acquis in the field of audiovisual advertising. Another European integration law, the Law of Ukraine "On Media", also came into force on 31 March.
In particular, the Law of Ukraine "On Media" was developed and adopted to meet the requirements of the European Union to Ukraine, in particular to overcome excessive private interests in the media space of Ukraine, to implement the provisions of Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on audiovisual media services as amended, and to strengthen the independence of the national regulator.
Key principles of the updated advertising laws
The documents define the legal framework for the activities of media entities in Ukraine, as well as the principles of state governance, regulation and supervision in this area.
According to the Law "On Media", the National Council on Television and Radio Broadcasting is the state regulatory and supervisory authority for media activities. The law specifies requirements for transparency of the ownership and control structure of the media. In addition, the document defines the specifics of legal regulation of media activities in the context of armed aggression.
The Law "On Mass Media" will repeal the following laws: "On Printed Mass Media (Press) in Ukraine", "On Television and Radio Broadcasting", "On News Agencies", "On the National Council of Ukraine on Television and Radio Broadcasting", "On the Procedure for Coverage of Activities of State Authorities and Local Self-Government Bodies in Ukraine by the Mass Media" and "On Protection of Public Morality".
For example, one of the most pressing issues is the regulation of the use of artificial intelligence in communications. Given the global trends in technology, the share of advertising is expected to grow rapidly over the next few years. However, it is currently unclear what legal rules should govern the use of AI in companies' operations. As these technologies are only developing in Ukraine, the Law on Advertising will be constantly improved.
Most anticipated legislative changes for the advertising industry
The most important changes include:
- Audiovisual and audio media instead of TV and radio.
The names of media concepts are changing. Print media will be called print media, television will be called linear audiovisual media, and radio will be called linear audio media. Audiovisual and audio media can be linear (television and radio broadcasting) and non-linear (subscription access to video content).
- Shared access platforms.
A new concept is emerging - platforms for sharing video (such as YouTube) and information (social networks). Video-sharing platforms are not considered non-linear audiovisual media, but their advertising is subject to the law on advertising.
- National symbols (flags and coats of arms) are allowed to be displayed in advertising.
However, there are two restrictions: disrespect for them must not be promoted and their use must not mislead the consumer (for example, Ukrainian-made parmesan cannot be advertised with the Italian flag).
- People in advertising and banknotes.
The rules for showing people in advertising have been simplified: if the client has all the necessary rights to the advertising material, no additional consent is required from the actor or actress to use their images in advertising. In addition, banknotes with images of individuals may be displayed.
- Pirate websites.
As before, it is prohibited to advertise on websites included in the list of the World Intellectual Property Organisation and to which the rights holders have claims.
- Mandatory payment in Ukraine.
The distribution of advertising in the Ukrainian media space is allowed only if the advertiser has paid for this service to a Ukrainian legal entity. Previously, this requirement was only applicable to TV advertising. This does not apply to advertising by non-residents, given the current NBU prohibition on paying for advertising services abroad. However, it is expected that this requirement will be cancelled this year in the process of harmonisation of Ukrainian and EU legislation.
- Unification of the ban on advertising of tobacco, e-cigarettes and vapes
Advertising of e-cigarettes, vapes, etc. is subject to the same prohibitions as tobacco advertising, namely, it is prohibited to display them in linear and non-linear audiovisual and online media.
- Alcohol advertising is prohibited in linear and non-linear audiovisual media from 6.00 to 23.00 (i.e., online cinemas will be subject to the same restrictions as TV). However, sponsorship of programmes is only explicitly allowed in linear audiovisual and audio media.
- The ban on gambling advertising from 6.00 to 23.00 applies only to linear audiovisual and audio media, meaning that it is formally possible in non-linear media.
- Quotas for advertising in print media are cancelled, but publishers must disclose the volume of advertising to subscribers.
- Social advertising: definition and rules are updated.
Social advertising is socially useful information aimed at developing individuals and society, promoting human values, healthy lifestyles, education, science, culture, history, and the distribution of which is not intended to generate profit and/or does not encourage voters to vote for or against a particular electoral subject. Anyone can be an advertiser, but social advertising cannot refer to a specific product, service, brand or advertiser, except for national films, public associations, charitable organisations and sponsors of sports events.
Finally, the law prohibits the tele-sale of fortune-telling, folk and alternative medicine services.
- In addition to the above, Draft Law No. 9206 is expected to introduce the following changes:
- New terms from the Audiovisual Media Services Directive (AVMSD) are introduced in terms of commercial manifestations in the media. In particular, the concepts of "user-generated content" and advertising in it are introduced.
- The term and regulation of "product placement", which is currently in the "grey zone", is introduced. The concept of "sponsorship" is synchronised with EU directives and separated from "product placement".
- The prohibition to include certain statements and/or images in advertising is expanded: in particular, those that are discriminatory and/or incite hatred, hostility or cruelty to individuals or groups of individuals on the basis of, inter alia, age, ethnicity, sexual orientation, disability, and other grounds.
- The issue of the availability of the necessary licences and permits for the advertised goods and services is raised. Thus, residents of other countries who advertise goods and services on the territory of Ukraine must have the appropriate licences or permits to sell such goods in accordance with the laws of the country of their activity. Also, for the purposes of the mandatory licences and permits, an advertising agency is not considered an advertiser. Any advertising by residents of the aggressor country is prohibited.
- The AVMSD increases the advertising quota (which is calculated not on an hourly basis, but for the time periods from 6.00 to 18.00 and from 18.00 to 24.00) in linear audio and audiovisual media to 20%.
- The rules for interrupting the broadcast of films (except for TV series and documentaries), news programmes and programmes for children by advertising are simplified (no more than once every 30 minutes). During the broadcast of programmes consisting of autonomous parts or sports events, advertising is placed in the intervals between their parts.
- Regulation of advertising on video-sharing and information-sharing platforms, as well as using electronic communications (messengers, bots, virtual and augmented reality, any digital technologies) is introduced, including mandatory labelling of advertising, as well as compliance with advertising laws, and prohibition of spam.
- Providers of video and information sharing platforms, as well as entities in the field of audio and audiovisual media, are prohibited from processing collected or received personal data of children for direct marketing and profiling, including behaviourally targeted advertising.
- Sponsorship using the TM for e-cigarettes and similar applications is prohibited.
- It is allowed to show weapons in social advertising.
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