Advertising to Children as Such in Spain
Schiller Abogados

1. ADVERTISING TO CHILDREN AS SUCH IN SPAIN

1.1. Legal/regulatory framework

(Are there any laws governing subject below and, if so, what do they stipulate?)

1.1.1 General Principles in legislation/self regulation on advertising to minors:

1.1.1.a Spanish Constitution dated 1978: Chapter II (Rights & Liberties):

Article 18: The rights to personal and familiar privacy and right to freedom from injury to reputation, honour or feeling are guaranteed.

Article 20 (freedom of speech): The rights of literary, artistic, scientific, technical production and creation and the right to receive genuine information freely through any means of communication are recognised and protected.

These rights are limited by the right to honour, to privacy and image and by the necessary protection to be given to youth and childhood. (Article 20.4).

1.1.1.b Act dated 5th May 1982 Num. 1/82 - The Rights to Honour, to Personal and Familiar Privacy and Preservation of Reputation:

Article 7: Within the domain of this law the use of the name, voice or image of a person for advertising, commercial or similar purposes is considered an illegal act.

1.1.1.c Act dated 15th January 1996 Num. 15/96 - The Legal Protection of Minors:

This Act forbids distribution of data and images in respect of minors through means of communication, when such distribution is contrary to their interest, even with the consent of the minor. The objective here is to protect minors from manipulation, even by their own legal representatives or by persons around them. The Act recognises the rights of minors to have access to information, but it is established that public administration must be careful and observe means of communication directed at minors and should protect their moral standards of equality, solidarity and respect to the community and to avoid images of violence and of exploitation in personal relationships, or images which reflect degrading or sexist treatment.

The Act states that in order to guarantee that advertisements or messages directed at minors or broadcast in programmes aimed at minors, are not morally or physically damaging to them, such advertisements or messages can be regulated by special regulations.

1.1.1.d Act dated 11th November 1988. Num. 34/1988 - General law of Publicity:

Article 3: This article considers that any publicity or advertising contrary to human dignity or publicity which violates the rights and standards protected by the Spanish Constitution, as illegal, most particularly if it concerns youth and childhood.

1.1.1.e Spanish Advertising Code of Conduct approved at the General Meeting of the Advertising self-regulatory Association (AAP) held on 19/12/1996 and amended at the GM held on 14/4/1999 (self-regulation):

Article 28 : Advertising messages addressed to children must be managed extremely carefully. They must not exploit the natural ingenuity, immaturity, inexperience or credulity of children or adolescents, nor must they take advantage of their sense of loyalty.

Advertising messages addressed to children or adolescents, or which are capable of influencing them, must not contain declarations or visual presentations which might damage them mentally, morally or physically.

Special care must be taken to ensure that advertisements do not mislead children as to true size, value, nature, durability or performance of the product being advertised. If extra items (for example, batteries) are required to use the product or to produce results described or shown (for example, paint), this must be explicitly pointed out. Advertisements must not overestimate degrees of skill or age limits of children in order for them to enjoy or use products advertised.

1.1.1.f Internet Advertising Code of Ethics approved at the GM of AAP held on 14/4/1999 (self-regulation):

Article 9 : protection of minors

Advertising via the Internet should not be morally or physically damaging to minors. Therefore advertisers must respect the following principles:

aa.) Material intended for adults only must be identified.

bb) Minors should not be directly incited to purchase a product, by exploiting their lack of experience or natural credulity, nor should they be encouraged to persuade parents or guardians to purchase products or services.

cc) In no way, should the confidence of minors in their parents, guardians, teachers or any other person be exploited.

dd.) Unless for a justified cause, children will not be shown in dangerous situations.

ee.) Before online information is provided to young children they will be encouraged to obtain parental consent.

ff.) Parents or guardians will be provided with information relating to methods to ensure the protection of children's privacy, when on line, as well as rights to access, cancellation and input with regard to their personal data and the way it is used.

1.1.1.g Definition of minors:

Civil Code (article 315): Minors are those who are under 18 years of age.

1.1.1.h From what age have minors capacity to enter into agreements?

Civil Code (article 1263): Minors cannot enter into agreements, unless they are "emancipated" (at 16 years only).

1.1.2 Specific products

1.1.2.a. Tobacco - the selling of tobacco to minors of 16 years and under is prohibited. Equally, the selling of products that imitate tobacco is prohibited.

aa. Law 34/1988 - General Law of Publicity:

The direct or indirect advertising of tobacco through television is prohibited. (In the same way as the law dated 12th July 1994 Num. 25/1914. The European Directive 89/552/CEE has been incorporation into the Spanish Judicial System). The advertising of tobacco is forbidden in places where the selling or consumption of tobacco is prohibited. (For example in hospitals, schools, school buses and places in general where there are children and adolescents).

bb. Decree dated 14th May 1992 Num. 510/92 - Labels on Tobacco Products:

Cigarette boxes must carry the standard health warning and also a warning or such wording that encourages the protection of others around - for instance children.

The use of cigarette vending machines is prohibited to minors. Owners of establishments where such vending machines are located are responsible for ensuring that this law is adhered to.

1.1.2.b Alcohol

aa. Act dated 11th November 1988 Num. 34/88 - General Law of Publicity:

The advertising via television of alcoholic beverages over 20¼ proof is prohibited. Similarly, it is illegal to advertise alcoholic beverages in places where the selling or consumption of such beverage is prohibited.

bb. Act dated 12th July 1994 Num. 25/94:

The advertising of alcoholic beverages via television cannot be directed at minors. Likewise the use of minors in advertisements for alcoholic beverages is prohibited.

cc. Code of the Spanish Advertisers Association for the self-regulation of the Advertisement of Alcoholic Drinks (November 1995):

Advertisements cannot be directed at minors under 16 years. In accordance with the code advertisers must refrain from using the voice and image of minors through any means of communication; using situations or scenes related to or connected with minors; any type of graphic or audio-visual etc means directed at minors; the image of famous persons etc popular with or associated with minors; to use or sponsor in cultural, social or sport events or functions directed at minors under 16 years.

dd. Code of self-regulation between Breweries and the Consumers Union (March 1996):

Commercial communications cannot be directed in any circumstances at minors.

It is prohibited to show minors or persons looking like minors drinking or emulating the drinking of beer. Advertisements cannot suggest that the consumption of beer is proof of maturity and likewise that non-consumption is the proof of immaturity. Advertisements relating to beer cannot be exhibited or broadcast in publications for minors or in theatres, cinemas etc before, during or after shows for minors, neither on television before 8.30 p.m.

1.1.2.c Toys

aa. Decree dated 6th November 1985 Num. 2330/85:

This relates to the safety of toys for children and includes items sold in joke shops etc:

Commercial messages or any information relating to toys cannot contain inaccurate information relating to the characteristics or safety guarantees of products for children, neither in the capacity or required manner necessary for a child to use such toys without harm.

bb. Code of Deontology for Child Publicity - prepared by the Spanish Association of Toy Manufacturers:

This code aims to prevent the broadcasting of commercial messages that are misleading to children and relates particularly to the advertising of products, via press, radio, TV etc., for children under 15 years. Advertisements cannot present misleading information, nor deceive or misinform children. They must be shown separate from programmes for adults and must show clearly that they are directed at children. Advertisers must refrain from the use of excessive commercial pressure in adverts designed for children. Information must be expressed in a language understandable to children. Comparative presentations of products must be based on the genuine advantages of the product. Special vigilance must be paid to advertisements for toys presented by popular persons. Advertisers must be cautious in the use of lotteries, games and commercial promotions in advertisements for children. Special attention must be paid to the safety of toys in advertisements.

1.1.2.d Medicines/health and beauty products

The advertising of medicines and sanitary products must be authorised and approved by the Sanitary Authority.

The advertising of "prescription only" medical treatments or products via television is prohibited.

The advertising of medicines can never be directed exclusively or principally at children. Advertisements can neither suggest nor recommend the product applied to them (unless the license for the selling of the product authorises so). The only exception to this is toothpaste. Medicines must show on their labels the standard "keep out of reach of children" warning.

Code of Advertising Deontology of the National Association of Advertising Pharmaceutical Specialities (medicines obtained without medical prescription):

Advertising must not be directed exclusively at children except for products relating to personal hygiene. These products cannot be advertised in such a way that the advertisements can induce the use of such products without parental supervision.

1.1.2.e Food/ diet products

1.1.2.f Dangerous products/weapons

The advertising and selling of weapons in the category of illegal weapons is prohibited.

The advertising of knives with a blade of more than 11cms in length is prohibited.

The advertising of pistols, revolvers and firearms for security and firearms for big game hunting can only appear in specialist magazines.

Some security sprays can be sold by gunsmiths to adults.

The public exhibiting of firearms and of reproduction firearms is prohibited, except in markets, exhibitions and authorised establishments.

Children older than 16 years, but younger than 18 years may only use firearms for hunting and competitions but only when accompanied by an adult with a firearms licence.

1.1.2.g Porn

The advertising of cinema, theatre or other types of shows which contain obscene images or expressions that are contrary to morality or standards can only be shown within the specialist establishments and theatres or magazines sold in specialised locations (such locations are prohibited to minors under 18 years).

Advertisements concerning activities contrary to morality or which are dangerous is prohibited (Decree 1189/82 dated 4th June 1982 - Inconvenient or Dangerous Activities for Youth & Childhood).

The broadcasting of televised programmes of a pornographic nature: Only between 10.00 p.m. and 6.00 a.m. and suitable warning of its adult content should be mentioned before the programme is broadcast.

1.1.3 Leading precedents

1.1.4 Ways of Advertising

1.1.4.a Direct Marketing (internet)

aa. Self Regulation (Internet Advertising Code of Ethics):

See Article 9. In point 1.1.1 above.

bb. Self-Regulation (Code of Ethics of the Protection of Personal data on the Internet) Prepared by the Spanish Association of Electronic Commerce:

Article 13 : In order for advertisers to obtain information and data relating to minors, they must take into account the age of the targeted audience and their level of knowledge and maturity.

Article 14 : The rules of this code refer to data obtained by consulting web-sites which offer products, services and information directed principally at children under 12 years.

Article 15 : Advertisers must offer parents the possibility to exercise rights of access, cancellation and determination of the finality of data relating to their children. In case a minor is in connection with an advertiser via a web-site and that minor requests information or advertisements on the basis of this web-site, without parental consent, the request of the minor cannot be accepted. Advertisers must encourage minors to consult their parents before given out their personal data.

1.1.4.b TV. Radio

Act dated 12th July 1994 Num. 25/94 (Incorporation to Spanish Judicial System of the European Directive 89/522/CEE):

Publicity via television cannot contain images or messages that may be morally or physically dangerous to minors:

• Advertisers must not instigate to buy a service or product

• Advertisers must not exploit the special confidence of children in the parent, guardians or other persons

• Advertisers cannot show children in dangerous situations

• Children's programmes cannot be interrupted by advertisements unless the programme is more than thirty minutes in length

1.1.4.c Internet

Self Regulation (Internet Advertising Code of Ethics):

See Article 9 in point 1.1.1 above.

1.1.4.d Lotteries/games

aa. Self-regulation (Spanish Advertising Code of Conduct):

Article 25: Promotional advertising, such as contests or similar operations will clearly indicate the conditions of participation and the expiry dates. At no time will the necessary conditions for obtaining the prize or the costs involved receiving it or taking part in the promotion be concealed.

bb. Self-Regulation (Code for Advertising to Children prepared by the Spanish Association of Toy Manufacturers):

Article 10: In the advertising of games for children advertisers must not give non-realistic expectations on possibilities of winning a prize. Prizes must be clearly indicated. Possibilities of winning must also be clearly indicated in advertisements. All prizes must be appropriate for children. Other forms of participation must be stated.

1.1.4.e Sponsorships

Self-Regulation (Code for Advertising to Children prepared by the Spanish Association of Toy Manufacturers):

Rule 6: Popular persons in television, whether live or animated, must not provide products, prizes or services in programmes for children in which those popular persons appear. In children's magazines a character relating to the content of the magazine or article in the magazine, cannot be used to promote products, prizes or services in the same magazine. A person who is endorsing an article directly or indirectly as an expert, must have the appropriate qualifications to express an opinion of that which he supports.

1.1.4.f Premises

1.1.4.g Magazines

1.1.4.h Other

1.2. ADVERTISING IN SPAIN OF SPECIFIC PRODUCTS DESTINED FOR CHILDREN BY USE OF CHARACTERS.

1.2.1 Cartoons and similar characters.

1.2.1.a Are there any legal restrictions at all to use famous cartoons or other fantasy characters such as Disney, Pok?mon characters items in advertisements to children?

aa. No legal restrictions except restrictions based on trademark law or copyright.

bb. Self-regulation (Code of Deontology for Advertising to Children prepared by the Spanish Association of Toy Manufacturers):

Rule 6: Popular persons in television, whether live or animated, must not provide products, prizes or services in programmes for children in which those popular persons appear. In children's magazines a character relating to the content of the magazine or article in the magazine, cannot be used to promote products, prizes or services in the same magazine. A person who is endorsing an article directly or indirectly as an expert, must have the appropriate qualifications to express an opinion of that which he supports.

1.2.1.b Are there any restrictions on programme/product tie-ins on broadcast of children's programmes which feature characters already commercially available as toys?

See "a" above.

1.2.1.c Relevant precedents confirming this situation.

1.2.2 Famous Persons

1.2.2 Advertising of services or products to children by use of famous persons

1.2.2.a Are there any legal restrictions at all to use famous persons such as athletes, pop stars, people known from the television, actors in advertisements to children?

aa. legal restriction : It is illegal to use of the name, voice or image of a person for the purposes of publicity or advertising or other aim without their consent.

bb. Self-regulation. Please see comments in point 2.1.a above. Also "all personal support must reflect the experiences and the usual beliefs of the person defending them. Nevertheless, popular and public persons as presenters or witnesses can be used to endorse a product as long as they are not identified through their profession with such product or service" "a person who supports an article or product directly or non directly as an expert, must have the appropriate qualifications to express the opinion of his support".

cc. Self Regulation (Spanish Advertising Code of Conduct):

Article 19: When advertising includes recommendations and/or testimonials, that is, assertions from parties not connected to the advertiser and who are not acting as spokesmen for the advertiser, whether they are paid or not, advertising must be truthful. Specifically, with regard to the person recommending/testifying and to the content of the recommendation and/or testimonial. Testimonials must be used only with the permission in writing of those giving them. The advertiser must be able to prove the truth of the testimonial. Such advertising may only be used as long as the above conditions are held to be valid.

1.2.2.b Relevant precedents confirming this situation.

2. ADVERTISING OF PRODUCTS OR SERVICE WITH THE USE OF CHILDREN

2.1 To adults

2.1.a Are there any legal restrictions at all to use children in advertisements to adults (decency, nudity or specific products such as nappies, children's wear etc?)

aa. Self Regulation (Code of Advertisers Association for the Self Regulation of Advertisement of Alcoholic Beverages): Alcohol: minors (image and voice) may not be used in the advertising media.

bb. Legal Regulation (General Law of Publicity) : Advertising offending the dignity or injuring, wounding, harming or violating the rights and standards set by the Constitution is illegal.

cc. Legal Regulation (Act of Rights of Honour and Image and Act of Judicial Protection of Minors). Any use of image or name of a minor in the media, when such use implies a damage to honour or reputation, or when contrary to the interest of the minor, is considered an illegal intromission to their rights to honour and to personal and familiar privacy, or to their own image, even with the consent of the minor or legal representative.

2.1. Relevant precedents

2.2 To children

Are there any legal restrictions at all to use children in advertisements to children (decency, nudity, specific products such as toys etc?)

2.2.a See point 2.1.a above.

2.2.b Self regulation (Code of Deontology for Advertising to Children prepared by the Spanish Association of Toy Manufacturers):

"small children with toys that are safe for use only by older children cannot be shown"

"when products or activities can be dangerous to their safety children must be shown with adult supervision"

"advertisements must not present children in insecure situations or in activities that are harmful to themselves or others"

"advertisements must avoid demonstrations that encourage dangerous usage or non appropriate usage of a product"

"Children must not be used to give formal testimony"

2.2.c. Legal Regulation (Act dated 12th July 1994 Num. 25/94)

"Advertising on television cannot show children in dangerous situations, unless there is justified reason"

2.3 Controls of use of children in advertising

Are there any controls over employment of children as actors in advertisements?

2.3.a Minors under 16 years cannot work: a labour contract between a minor under 16 years and an employer is considered null and void.

2.3.b Participation of minors under 16 years in public shows requires the agreement of the labour authority. Such participation however, must not present a danger to the physical health, professional or human formation of the child.

2.3.c The legal representatives of the minor must present the application complete with the consent of the minor, if the minor has attained sufficient age and judgement to be able to give such consent.

2.3.d A parent can then sign a contract with the consent of the minor.