Over the years, EASA has produced a number of position papers on several issues. Below are extracts of the latest ones. Full position papers can be released to interested people upon request.
The Digital Services Act
The Digital Services Act (DSA), presented by the Commission in December 2020, is looking to complement the E-commerce Directive and update the legislative framework governing digital services and impact certain advertising elements. The DSA will deal with issues such as the protection of consumers, the fundamental rights online, transparency requirements and the accountability framework for online platforms, among others.
As early as 2021, EASA established a position paper on the draft DSA, which was then regularly updated to keep up with the developments in the legislative process. Following intense inter-institutional negotiations, the co-legislators found a political agreement on 23 April 2022, and the European Parliament adopted the text in Plenary on 5 July 2022.
In particular, the DSA addresses the following issues that are relevant for EASA:
- Codes of conduct and codes of conduct on online advertising
- Definition of “advertisement” and online advertising transparency
- Scope of the Article 34 on Standards
- Internal complaint settling and out of court dispute settlement
The adoption by the Council of the EU took place in Fall 2022 and the entry into force 20 days later. The Commission’s publication of the list of very large online platforms no later than 3 months after entry into force (Q1 2023), following which the very large online platforms have a further 4 months to comply . The deadline for all other intermediary services providers is 15 months after the entry into force of the Regulation (Q1 2024).
EASA intends to keep in touch with the relevant institutions and regulators, as regards the phase of implementation, to continue to make the voice of national ad SR heard.
Issue-based commercial advertising
“Issues-based ads” are commercial advertisements touching upon societal or controversial issues. As consumers are becoming increasingly conscious about the products and services they purchase, they want confidence that businesses adopt fair, ethical and sustainable business practices. As such, it is important for advertising to be able to reflect this, for example via issue-based ads.
Such commercial issue-based ads are already regulated by EU law, such as the Unfair Commercial Practices Directive (UCPD) and Audiovisual Media Services Directive (AVMSD), complemented by the advertising self-regulatory systems, which provide robust, flexible and consumer-friendly mechanisms.
The European Commission published on 25 November 2021 a legislative proposal for a Regulation introducing strict political advertising transparency requirements. The excessively broad definition of political advertising in the proposal would cover a wide array of issue-based advertisements, including commercial ads. The draft in now in interinstitutional negotiations between the Parliament and the Council of the EU.
To avoid legal uncertainty and detrimental side effects, EASA calls for excluding commercial advertising from the draft Regulation. This is reflected in EASA’s feedback to the European Commission.
Audiovisual Media Services Directive (AVMSD)
The Audiovisual Media Services Directive 2010/13/EU contains a common set of rules around advertising standards, including a ban on tobacco advertising and restrictions around advertising to children that apply to all audiovisual content services. The document also features rules about programme sponsorship, product placement and quantitative limitations on the amount of advertising time allowed per hour on linear services.
The AVMS Directive was the first directive to formally recognise the value of advertising self-regulation and the important role it can play in delivering a high level of consumer protection.
The European Commission Digital Single Market Strategy published in May 2015 officially announced the revision of the AVMS Directive. In 2015 the Commission carried out a public consultation on the Directive. The revised AVMSD was adopted in 2018, leaving the Member States until 2020 to transpose it. However, transposition took longer in many Member States, only completed throughout the EU in December 2022. Policymakers are now working on implementation reports, and EASA remains in touch with them.
- The AVMS Directive updated the 1989 ‘Television without Frontiers Directive, the main advertising regulation in the EU.
- The AVMSD is a minimum harmonisation Directive. This means that Member States are free to choose the most appropriate means to achieve the EU objectives at the national level and that they can put in place stricter rules at the national level provided that those rules are consistent with the general principles of European law.
Green Claims – ECGT and GCD
The Commission published on 30 March 2022 a proposal for a Directive Empowering consumers for the green transition (ECGT). The proposal was intended to amend the Unfair Commercial Practices Directive (UCPD) and the Consumer Rights Directive. The draft amendments to the UCPD would insert several new definitions and would amend UCPD Art. 6 and 7, which prohibit misleading practices based on case-by-case assessments. In the list of practices prohibited in all circumstances, several new types of claims and practices would be added, many of which appear already covered by national ad SR systems. EASA has internally assessed the proposal against the coverage by the ICC Code’s Chapter D, ICC’s relevant Framework, and the SROs’ Codes. EASA has also established a position paper on this legislative initiative and taken contact with policymakers.
The Commission tabled its proposal for a Green Claims Directive (GCD) on 22 March 2023, which lays down rules setting requirement to companies in terms of substantiation and communication of the claims they make about their product or services’ environmental merits, with a view to enabling consumers to make better informed environmental choices. All claims would have to be certified ex-ante by an independent accredited verifier. EASA has drafted a position paper and has communicated it to the European Commission as feedback. EASA’s position contains the following key recommendations:
- Clarification is needed as to the definition of explicit environmental claim
- Recognising in Recital 36 and in Article 10(8) the benefits of collective advertising self-regulation for the protection of consumers against misleading green claims
- Ensuring coherence with the proposal on Empowering consumers for the green transition
EASA also makes additional remarks in its position paper, about the risks posed by an ex-ante verification mechanism. EASA will reamain in touch with the relevant policymakers throughout the law-making process, so as to convey the messages listed above.
Fitness check of EU consumer law on digital fairness
The European Commission has initiated on 17 May 2022 a fitness check of EU consumer law. The fitness check aims to assess the adequacy of the existing EU consumer protection legal framework, consisting of the Unfair Commercial Practices Directive (UCPD), the Consumer Rights Directive (CRD) and the Unfair Contract Terms Directive (UCTD), to the digital context. Only the first of the legal acts mentioned (UCPD) has a direct impact on advertising.
The European Commission has carried out various round of consultation since the start of the fitness check. EASA has contributed every time.
Ultimately, in 2024, this fitness check may lead to a new legislative proposal amending the UCPD, or to measures for enhanced implementation and enforcement. The fitness check is looking into issues such as dark patterns, personalisation practices, and influencer marketing, among others, while also assessing the relevance, in an ever more digital world, of some UCPD’s fundamental concepts such as average consumer, vulnerable consumer, or professional diligence.
EASA’s answer – Consultation on the fitness check of EU consumer law on digital fairness
Green Claims Directive – EASA Position Paper
Political Advertising Feedback Paper EASA 2022
AVMSD Position Paper EASA 2018