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Clarifications of Russian FAS on Internet Advertising

28 August 2015 the Federal Antimonopoly Service of the Russian Federation (hereinafter - "FAS") issued clarifications № AK/45828/15 on application of advertising law to placing advertisements and informational materials on the Internet. Clarifications have been developed pursuant to the Plan on provision of guidance to FAS territorial bodies in 2015, approved by the FAS order № 219/15 dated 31 March 2015.

FAS reminded that in accordance with paragraph 1 of the Article 3 of the Federal Law "On Advertising" № 38-FZ dated 13 March 2006 (hereinafter - the "Law on advertising") advertisement constitutes information, transferred in any way, in any form or by any means, addressed to unlimited number of people, aimed at attraction of someone’ attention to the advertised object, establishing or maintaining someone’s interest to it, as well as at its promotion on the market.

Nonetheless the Law on advertising does not apply to reference and informational materials as well as to analytical materials (such as market surveys, research results, etc.), not aimed at promotion of goods on the market and not deemed as social advertising.

According to FAS, the following information is not considered as advertising:

  • information in respect of goods, placed on the website or on the page in social network of the manufacturer or seller of these goods, if such information is aimed at informing on sold goods, their assortment and instructions for use;
  • information on company's business, activities and events held by the company, etc.;
  • information on discounts and promotions on the websites, used for accumulation of various offers, discount coupons and tickets allowing to purchase goods with a discount;
  • information, obtained via Internet search engine (except contextual advertising).

In respect of the last example FAS additionally explains that results of a search request do not serve one of the main purposes of advertising, i.e. establishing or maintaining someone’s interest to particular legal entity, its goods or services. Such information is aimed at giving response to the request on provision of such information. Thus, the result of processing the user's request, provided by search system, is not qualified as advertising.

At the same time FAS notes that if the main aim of information on the website is not informing consumers about the assortment of goods or activities of the company, but attraction of  customers’ attention to particular product and its promotion among similar goods, such information shall be classified as advertising (example – pop-up banner).

It is especially noted that officers of antitrust authority are entitled to use any means for fixing the facts of advertising law violation. FAS outlined three possible ways to fix improper advertising by officers of antitrust authorities:

  • drafting an act of website’s inspection, analogy to inspection of website by a notary;
  • "printscreen" of website's pages;
  • Using search results in Internet archive (http://archive.org/web/).

Clarifications of FAS, while not considered as a normative act, constitute methodical recommendations for antitrust authorities, which should be taken into account during review of cases, connected with advertising law violations. Consequently, when placing information on the Internet, it is recommended to refer to FAS position, specified in clarifications under review, as this will help to minimize the legal risks, related to possible qualification of such informational materials as advertising.

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