One Year of Advertising Case-Law: An Overview and a Look to the Future

Analysis of the decisions issued in 2019 by the bodies of the Italian Advertising Self-Regulatory Institute

In 2019, the bodies of the Italian Advertising Self-Regulatory Institute (“IAP”), a private entity self-regulating the advertising sector, published 63 [1] resolutions, including injunctions and decisions.  

This represents a significant decrease in the number of resolutions published as compared to the previous year (in 2018 there were 104 resolutions), but in-depth analysis revealed that in 2019 the IAP paid much more attention than in the previous years to certain topics, such as advertising on social-media networks; further some interesting decisions were issued in connection with the objectification of women.  

General overview of IAP’s activity and some numbers  

Since 1966, the IAP has self-regulated advertising by establishing standards to ensure that commercial communications are honest, truthful, and correct. Indeed, good advertising is in the interest of all the parties involved: on one hand, consumers should not be misled by incorrect information; on the other one businesses should operate in a context of fair competition; lastly media, whose editorial content should not be tainted by unfair and misleading advertising.

The applicable rules are set forth in the Self-Regulatory Code of Commercial Communications (the “Code”) and enforced by both the monitoring committee (“Committee”), which is responsible for the protection of consumers and acts both on its own initiative and upon public request, and the jury (“Giurì”), which judges advertisements upon request of the Committee or businesses. The Code is binding for advertisers, agencies, consultants, media, sales organizations, and all operators that accept it by entering into an agreement for advertising. Although the Code is self-regulatory by nature, entities adhering to the Code typically include an acceptance clause in their agreements requiring the other party to comply with the Code. Therefore, even though the Code applies on a voluntary basis, given that most operators and owners of means of communication have signed the Code, in practice the rules of the Code are nearly always applicable and must be taken into account by advertisers.  

In 2019, the IAP published 63 resolutions, including 39 injunctions issued by the Committee and 24 decisions issued by the Giurì. This was a significant decrease compared to 2018—which saw 104 resolutions, including 62 injunctions and 40 decisions—but in-depth analysis of the content of the resolutions revealed interesting aspects.  

IAP and the digital world  

First and foremost, in 2019 the IAP paid much more attention to the digital world and specifically to advertising on social-media networks: 15 injunctions were issued by the Committee in connection with online advertising that was not adequately identified. This figure is unsurprising given that this year the IAP amended its Code by specifying that online advertising must comply with the contents of the Digital Chart Regulation, a document issued by the IAP to establish criteria that ensure that online commercial communications are always recognizable as such (reflecting the principle of transparency in advertising as set forth in Article 7 of the Code). This amendment shows that the IAP is increasingly focused on the digital environment, resulting in increased enforcement in this area.  

The injunctions issued by the Committee all have the same basic context, structure, and content: they are addressed to brands in connection with messages posted by influencers on their social media accounts about certain brands’ products  without proper disclosures clarifying the promotional purpose of such messages, except for including brand page tags (i.e., @nameofbrand). The Committee does not consider this an adequate way to disclose that a post is the result of a commercial agreement between the influencer and the brand. As stated by the Committee, influencers must employ the disclosures set forth in Digital Chart Regulation—for instance #advertising, #suppliedby[brand], #ad[brand]. The IAP considers using those hashtags a way to ensure that not only a formal, but also a substantial distinction is made between promotional and other content (such as the influencer’s true and personal opinions), thus guaranteeing that the principle of transparency of commercial communications is respected. Indeed, this is the only way advertising can be easily recognized by the public as such. It also guarantees that such advertising clearly shows its nature as a promotional message and an expression of the point of view and interest of the company whose products or services are promoted, with no interpretative effort required.  

IAP and women  

The Committee also focused on banning advertising with debasing representations of women. Article 10 of the Code states that advertising “should respect human dignity in every form and expression and should avoid any form of discrimination, including that of gender”. IAP’s attention to this matter is connected to increased public awareness of and concern with discrimination, as well as the need to respect personal dignity and gender identity (Committee injunction No. 66/2019).  

In several cases in 2019 the Committee banned advertising considered in breach of Article 10. These included the following cases:  

• the naked body of a woman was used in an instrumental and objectified way, as well as in a position of clear subordination to a male figure (Committee injunction No. 2/2019); 
• a woman was meshed with the advertised product so that she appeared to be a good to be consumed (Committee injunction No. 15/2019);  
• the figure of the woman was exploited for the sole purpose of attracting the public’s attention (Committee injunction No. 20/2019) and to such an extent that the advertising inevitably led to commodification of the person, which is not acceptable (Committee injunction No. 41/2019; Committee injunction No. 57/2019).  

Moreover, the Committee has stated that the unjustified use of the female body and sensuality generates discomfort and feelings of rejection among the audience that then has the overarching effect of discrediting women; such discredit is then reflected in the commercial communication itself, understood as a sort of institution. This runs counter to Article 1 of the Code, which states that advertising “must avoid anything likely to discredit it.”  

IAP and other interesting new input  

Analysis of these decisions has highlighted some interesting concepts that advertisers ought to consider when planning future campaigns:  

• Substantiation: Generally speaking, the advertiser must adequately substantiate any statement made within advertising (Article 6 of the Code). In this regard, the Giurì has expressly stated that the advertiser should already have evidence of substantiation when advertising is on-air (Giurì resolution No. 9/2019).
• Product placement: Product placement is a form of communication regulated by Article 40-bis of Legislative Decree No. 177/2005 that allows the inclusion of products for monetary consideration in cinematographic and other specific audiovisual works, albeit under strict conditions. The Code does not expressly regulate product placement. However, the Giurì was asked to issue a decision in connection with the relationship between the Code and Article 40-bis, it stated that product placement is a promotional technique involving messages sent to the public for promotional purposes and as such it fully falls within the definition of commercial communication provided by the Code. Although, there is a specific provision in the law on product placement, the Giurì recognized its jurisdiction in regard to these messages in a self-regulatory context as well. In the light of these considerations, product placement within a broader advertising message (e.g., a promotional video within a TV show) must be properly identified as advertising and failing to adopt appropriate measures to do that could be considered a breach not only of Article 40-bis, but also of Article 7 of the Code (Giurì resolution No. 14/2019).
• Fairness in commercial communications: The Giurì considered several commercials broadcast on television in breach of Article 1 of the Code, due to their denigrating content and the advertiser’s behavior (the advertiser did not appear before the Giurì). Moreover, the Giurì declared that the advertiser is presumed to be bound to comply with the rules of the Code by virtue of the acceptance clause that routinely and implicitly included in media (i.e., television) advertising contracts (Giurì resolution No. 50/2019).

[1] All the figures included within the text are based on the resolutions published on the official site of the Italian Advertising Self-Regulatory Institute on February 20, 2020.