The FAS has issued new guidelines and documents regulating legal relations in the field of advertising. Particular attention was paid to the determination of the fact of advertising. FAS had previously been guided by these rules, such as in the case below, but formalized them into one document and introduced new elements.
- FAS Order No. 821/23 of 14.11.2023 «On Approval of the Guidelines for Compliance with Mandatory Requirements ‘Concept of Advertising’»
- Resolution of the Eighteenth AAC of 19.12.2023 № A07-7708/2023
- Federal Law No. 38 «On Advertising» dated 13.03.2006
Information sent via e-mail or SMS
Although the Federal Law states that the sign of advertising is an indefinite number of persons, FAS may consider mailing to an address list to be advertising, as in practice the object of advertising is given priority.
In the new order, FAS notes that it prioritizes substance over form in the matter of certainty of the addressee. In other words, even if a message is addressed to a specific person but contains an offer, FAS is inclined to consider it an advertisement.
In the case below, a bank was fined 350,000 roubles for sending out a credit offer via SMS. The court stated that the nature of such an offer is not personalized, as they are of interest to an indefinite number of persons, and therefore the prior consent of the subscriber was required.
Also, FAS notes that it does not matter and the place of placement, if the nature is not personalized — then the information can be considered advertising.
Fixed messages in Telegram
FAS considers that fixed posts with goods or services in Telegram channels, which follow the user throughout the visit, are advertising, as they highlight the goods among homogeneous ones and arouse interest in them. By the same principle, FAS considers similar fixed posts in VK to be advertising, only unlike Telegram, such a post does not follow the user, but is static. We believe that FAS can point this out and use the argumentation that this is just a tool of the social network, which does not distinguish such a post from others, including the function with the product card — just a technical service of the marketplace.
FAS also notes that the fixed message is not advertising when it is a record of product descriptions, news, announcements of promotions, background information, which does not create interest in a particular product.
Logotype on souvenir products
FAS indicated that logos on souvenirs and clothing are applied for advertising purposes, but there are exceptions. Use of such products by right holders. If it is used by an employee, used at the place of service or sale or at an exhibition, it is not considered advertising. But distribution of branded products to an unspecified circle of persons is advertising.