Home  Contact Us
  Follow Us On:
 
Search:
Advertising Advertising Free Newsletter Free E-Newsletter
Magazine
  
      2024       2023       2022       2021       2020       2019       2018       2017       2016       2015       2014       2013       2012       2011       2010       2009       2008

Legal: Recommendations and countermeasures for solving legal issues of the Internet advertising under the e-commerce model
Share to

Recommendations and countermeasures for solving legal issues of the Internet advertising under the e-commerce model

By Manuel Torres (Managing Partner of Garrigues China) & Rachel Zhou (Corporate Associate)


BT 201610 120 03 Legal 8283313605 21705ec4d7 o11. Creating new ideas to solve Internet covert advertising


Unlike the traditional media advertising, Internet advertising fosters plenty of interactivity. However, consumers do not merely passively receive Internet advertising. Therefore, administration of Internet advertising with the method of administrating traditional media advertising, especially the prohibition of "covert advertising" in Internet advertising, may limit the interactivity and affect the development of e-commerce. Therefore, new ideas should be created to change the consumer awareness of Internet advertising, fully consider the special nature of the network environment and properly ease regulations over "Internet covert advertising".


2. Taking the "Interim Measures for the Administration of Internet advertising" as guidance to determine the legal liability of the Internet advertiser, advertising operator and advertising publisher


BT 201610 120 02 Legal 8283313605 21705ec4d7 o1On July 4, 2016, the State Administration for Industry and Commerce released the "Interim Measures for the Administration of Internet advertising". It is the first act specifically meant for regulating Internet advertising and will come into effect on September 1. "Interim Measures for the Administration of Internet advertising" defines the advertising nature of Internet paid research and incorporates e-mail advertising, goods promotion and service linkage into the scope of advertising regulation.


Moreover, "Interim Measures for the Administration of Internet advertising" also specifies the legal liability of the Internet advertiser, advertising operator and advertising publisher. According to Article 10, "Internet advertisers should be responsible for the authenticity of advertising contents. An advertiser should have the subject identity, administrative licensing, contents of confirmation and other official certificating documents when publishing Internet advertising and the documents should be real, lawful and effective." As stipulated in Article 11, "publishers of Internet advertising push or show Internet advertising to advertisers or advertising operators and have the right to check advertising contents and choose the natural person, legal person and other organizations for releasing advertising."


According to Article 12, "the Internet advertising publisher and operator should comply with relevant laws and regulation to establish and improve the Internet advertising business-undertaking rating, review and file management system. The Internet advertising publisher and operator should check relevant certificating documents and examine advertising contents and should not design, make and publish advertising with false and fraud information or insufficient certificating documents. Moreover, the Internet advertising publisher and operator should hire advertising review staff familiar with advertising laws and regulations and set up a special organ for examining Internet advertising, if possible.


3. Based on the new "Advertising Law" to determine jurisdiction of Internet advertising


BT 201610 120 05 Legal 8283313605 21705ec4d7 o1The "Advertising Law of the People's Republic of China (2015 Revision)" has been revised and adopted at the 14th session of the Standing Committee of the 12th National People's Congress of the People's Republic of China on April 24, 2015, and the revised Advertising Law of the People's Republic of China is hereby promulgated and shall come into force as of September 1, 2015.


The new "Advertising Law" is promulgated to safeguard legitimate rights and interests of consumers, regulate the social order and reflect the strictness of the law. According to Article 6 of the "Advertising Law of the People's Republic of China (2015 Revision)", "the administrative department for industry and commerce of the State Council shall take charge of advertising supervision and administration nationwide and the relevant departments of the State Council shall be responsible for work related to advertising administration within their respective functions.


Local administrative departments for industry and commerce at and above the county level shall take charge of advertising supervision and administration within their respective administrative regions and the relevant departments of local people's governments at and above the county level shall be responsible for work related to advertising administration within their respective functions." The new "Advertising Law" is based to further determine the jurisdiction of Internet advertising in the ""Interim Measures for the Administration of Internet advertising". According to Article 18, "local administrative departments for industry and commerce of the adverting publisher shall take charge of administration penalties on illegal acts in Internet advertising. If local administrative departments for industry and commerce of the adverting publisher have difficulty in administering the advertiser and advertising operator in other places, they can transfer illegal cases of the advertiser and advertising operator to local administrative departments for industry and commerce of the advertiser and advertising operator.


Local administrative departments for industry and commerce of the advertiser and advertising operator have jurisdiction over illegal acts if illegal clues are found or reported. Local administrative departments for industry and commerce of the advertiser shall take charge of administrative penalties on illegal advertising released by the advertiser."


4. Implementing relevant laws and regulations to limit unfair competition in Internet advertising


The "Advertising Law of the People's Republic of China" stipulates that the advertiser, advertising operator and advertising publisher shall not engage in any form of unfair competition. According to the "Anti-Unfair Competition Law of the People's Republic of China" operators shall not sell goods at a below-cost price for the purpose of excluding competitors. Above-mentioned laws apply to unfair competition related to commodity prices in Internet activities. The "Trademark Law" and "Interim Measures for the Recognition and Administration of Well-known Trademarks" of China apply to acts of using network keywords in violating of trademarks and other marks of famous companies.


5. Assigning legal responsibility for fraud and false advertising and advertising misusing the celebrity image


According to Article 56 of the "Advertising Law of the People's Republic of China (2015 Revision)", "in case an advertiser publishes false advertising in violation of this law to cheat and mislead consumers and cause detriment to the lawful rights and interests of consumers who purchased the commodity or received the service, the advertiser should bear civil liabilities. In case the false advertisement for a commodity or service that matters to the life and health of the consumers cause harm to the consumers, the advertising operator, advertising publishers and endorser should bear joint liabilities with the advertiser." According to Article 59, "an advertiser, advertising operator or advertising publisher who uses other person's name or image without consent in the advertising should bear civil liabilities".

BT 201610 120 01 Legal 8283313605 21705ec4d7 o16. Effectively safeguarding legitimate rights and interests of consumers in Internet advertising


In e-commerce transactions, all links except for the delivery can be completed through the Internet. It is difficult for consumers to check the authenticity and reliability of product information in Internet advertising. In case of being deceived, they usually face obstacles in complaints, litigation and other aspects when safeguarding their legal rights. Therefore, the State Administration for Industry and Commerce should take charge of the establishment of a unified national online complaint center which is responsible for accepting and hearing consumer complaints for online shopping. It should follow existing laws and regulations to impose penalties on businesses that infringe the rights and interests of consumers.


In view of the special nature of Internet advertising, international conflicts in the application of law to protection of consumer rights may occur. Therefore, various countries around the world should work together to reach a consensus on fundamental issues and solve the conflicts by agreement, international convention and other means.


Conclusion


Along with the continuous development of e-commerce trading model, a new way of advertising has been created. Internet advertising has become a major source of revenues for many websites. It is difficult to achieve appropriate and comprehensive regulations of Internet advertising by implementing existing laws and regulations and a series of legal issues are presented in practice. This paper discusses the standardization and legalization of Internet advertising under the e-commerce model, puts forward practical recommendations and measures and provides reference for promoting the further development of e-commerce.


---END---

    Subscription    |     Advertising    |     Contact Us    |
Address: Magnetic Plaza, Building A4, 6th Floor, Binshui Xi Dao.
Nankai District. 300381 TIANJIN. PR CHINA
Tel: +86 22 23917700
E-mail: webmaster@businesstianjin.com
Copyright 2024 BusinessTianjin.com. All rights reserved.