Online Advertising

27 August 2004

Johan Vandendriessche

Belgian Parliament corrects an implementation error over the use of the word "advertising"

Under the Program Law of 9 July 2004 (Belgian State Gazette, 15 July 2004), Belgium has corrected its previously inaccurate implementation of Article 6(a) of the Directive 2000/31/EC of the European Parliament, passed on 8 June 2000 (the "E-commerce Directive").

The E-commerce Directive is concerned with the legal aspects of information society services and in particular, electronic commerce within a Member States’ internal market. Specifically, Article 6 stipulated that a "commercial communication shall be clearly identifiable as such".

Previously, Article 6 of the E-commerce Directive had been implemented into Belgian national law by Article 13 of the Belgian Law on certain legal aspects of information society services (the "Law"), on 11 March 2003. However, the Law implemented Article 6 as follows:

"Immediately upon receipt, advertising shall be, as a result of its global impression (including its presentation), clearly identifiable as such and shall bear the word "advertising" in a clearly visible, clearly legible and unambiguous way".

As a result of this earlier implementation, therefore, online advertising always had to include the word "advertising", even if it was clearly identifiable as such. Several online and interactive advertising business associations challenged this implementation of the E-commerce Directive. They lobbied intensively and successfully, to have the Law changed primarily on the grounds that this helped foster discriminatory practices between offline advertisers and online advertisers.

The principle argument used to challenge the Law was that the earlier Article 23 (5) of the Belgian Law (14 July 1991) – a law which relates to trade practices and consumer protection - already mandated that offline advertising only has to use the explicit term "advertising" if such advertising is not clearly identifiable from the overall impression given by the advertisement itself, including the manner in which such advertising is presented.

The anomaly, therefore, arose because Article 13 of the Law stated that if such advertisements formed part of an information society service, they should always explicitly mention the term "advertising". The Belgian Minister of Economy called this inconsistency an error.

In the Parliamentary Report of 18 May 2004, Parliament admitted that it had not intended to create any discrimination between online and offline advertising by requiring more from online advertisers than their offline equivalents. Consequently, Article 13 of the Law was rephrased as follows:

"Immediately upon receipt, advertising shall be clearly identifiable, as a result of its global impression (including its presentation). If this is not the case, it shall bear the word "advertising" in a clearly visible, clearly legible and unambiguous way".

Finally, it is interesting to note that this Parliamentary Report made clear reference to the lobbying efforts of the online advertising industry and the effect these had on the decision to rephrase Article 13:

"this urgent correction of the text was requested by the providers of information society services and is wholly justified."