Spanish Advertising Law: Misleading, Unfair, and Unconstitutional Ads
Misleading Advertising
Misleading advertising, defined in Article 4 of the Act, can induce or mislead recipients, affecting their economic behavior and potentially harming competitors. It can also omit key information. There are three types of misleading advertising:
- Misleading to recipients, either by using a similar brand to a prestigious one or by other means.
- Harmful to a competitor, making reference to another brand.
- Omitting essential product details (e.g., selling a component separately).
Article 5 of the Act lists criteria to determine if advertising is misleading, focusing on:
- Goods characteristics: origin, nature, purpose, quality, quantity, method, and date of manufacture.
- Price: complete, budget, etc.
- Acquisition conditions.
- Reasons for the offer.
- Advertiser data: nature, qualifications, and rights.
- After-sales service information, such as warranties.
Unfair Advertising
Regulated by Article 6 of the LGP, unfair advertising includes:
- Advertising that discredits or disrespects a person, company, products, services, trademarks, or other distinctive signs.
- Advertising that misleads regarding competitors’ activities, products, or trademarks, or makes unwarranted use of others’ names, initials, or marks.
- Comparative advertising that doesn’t meet the requirements of Article 6 bis of the LGP (introduced by Law 39/2002). Permissible comparative advertising must:
- a) Compare goods or services satisfying the same needs or purposes.
- b) Be objective about essential characteristics.
- c) For products with designation of origin, compare only products of the same denomination.
- d) Not present goods or services as imitations of protected brands.
- e) Indicate start and end dates for special offers.
- f) Not profit from a competitor’s reputation.
Breaching these criteria constitutes unfair advertising, misleading consumers, and may be penalized under the LGP and the Consumer Act.
Advertising Contrary to Constitutional Values
General Clause
Illegal advertising includes content contrary to constitutional values and rights, as per Article 3 of the LGP. This particularly refers to rights in Articles 18 and 20.4 of the Spanish Constitution (honor, privacy, and publicity).
Article 18:
1. The right to honor, personal and family privacy, and image.
2. The home is inviolable…
3. It guarantees the secrecy of communications…
4. The law limits the use of information technology to ensure privacy…
Article 20.4: These freedoms are limited with respect to the rights recognized in this Part…especially, in the right to honor, privacy, self-image and the protection of youth and childhood.
Advertising violating fundamental rights is unconstitutional and may be tried by the Constitutional Court.
Special Section: The Image of Women
A special clause addresses the image of women, introduced by Organic Law 1/2004 on Integral Protection Measures against Gender Violence. This law also introduces new subjects entitled to exercise actions under Article 25.1 bis of the LGP.