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12 July 2019
Online messenger systems are popular – and not just for private communications. Advertisers are increasingly using online messenger systems to promote businesses, as well as their goods and services. As a result, the use of instant messaging services may trigger various legal concerns, including with regard to advertising compliance.
In Russia, online messenger systems are subject to regulatory requirements enforced by the Federal Service for Supervision of Communications, Information Technology and Mass Communications (Roskomnadzor) and the Federal Security Service. However, advertising legal requirements are enforced by the Federal Anti-monopoly Service (FAS).
The FAS central division often issues guidelines by way of official letters addressed to its local divisions. In these guidelines, FAS clarifies various issues involving the application of the Federal Law on Advertising (Law 38-FZ of 13 March 2006). Although such official letters are not legally binding, they play an important role in the daily enforcement of advertising and promotion and should thus be taken into consideration by market players.
On 24 June 2019 FAS issued Letter АК/52901/19 on Clarifications on the Issue of Advertising in Messengers (Viber, WhatsApp), the Classification of Information as Advertising and Methods to Detect Advertisers. The letter is notable as it reveals the regulator's approach to advertising campaigns disseminated via various instant messaging services.
As noted above, the main focus of Letter АК/52901/19 is to set out the regulator's position regarding the publication (dissemination) of advertising information via software, such as WhatsApp, Viber and other apps that transmit and receive data via electronic networks. According to FAS, advertising via online messenger systems is subject to the general provisions on advertising via electronic networks (so called 'e-advertising').
According to Article 3(1) of the Federal Law on Advertising, 'advertising' is any information which is:
FAS has expressly noted that the classification of information as advertising is done on a case-by-case basis, taking into account the presence or absence of the above features.
In accordance with Article 18(1) of the Federal Law on Advertising, the following requirements apply to e-advertising:
If the above requirements are not met, FAS or its territorial divisions may find the respective infringers administratively liable.
Who is liable for incompliance?
Pursuant to Article 38(7) of the Federal Law on Advertising, advertising distributors will be liable for a violation of Article 18 of the law. However, FAS has clarified that the dissemination of advertising via WhatsApp, Viber and other apps is not a legal ground to classify software developers as advertising distributors. In Letter АК/52901/19, FAS noted that:
By virtue of the relevant administrative regulations of 23 November 2012 (711/12), FAS can collect evidence (eg, documents, information and written or verbal explanations) from third parties – including governmental agencies, business entities and individuals – which are necessary to confirm the circumstances of a particular case. In this regard, FAS, insofar as it is competent to do so, may file a corresponding request for information with the party whose goods or services are advertised through an online messenger service in order to determine the respective advertiser or advertising distributor. Where it is impossible to detect the party in breach of the Federal Law on Advertising within a certain period, FAS may close the case.
Since FAS Letter АК/52901/19 represents the regulator's official position on this issue, it should be taken into account when promoting goods or services through instant messaging services.
Further, in order to mitigate the risks associated with non-compliance with the e-advertising requirements, parties which are planning advertising campaigns targeted at the Russian market should:
Parties are also advised to monitor case law developments in this particular sphere.
For further information on this topic please contact Sergey Medvedev or Ilya Goryachev at Gorodissky & Partners by telephone (+7 495 937 6116) or email (firstname.lastname@example.org or email@example.com). The Gorodissky & Partners website can be accessed at www.gorodissky.com.
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