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On Relevance of Comparative Study of Russian and Spanish Advertising Legislation

Natalia N. Kuzina, Director General, “Center of Legal and Accounting Services Business-Fortune” LLC

Eduard L. Strauning, Candidate of Law, Executive Vice-President, Open Joint-Stock Company — Joint-Stock Commercial Bank “Baltica” Russia

The articles deals with the importance of comparative studies of advertising legislation in various countries, Russia and Spain in particular, in the increasingly integrated world. The authors also give the overview of the history advertising legislation in Russia and explain the relevance of studying the Spanish experience in this area.

Comparative studies of advertising legislation of Russia and other countries are being analysed by Russian scientists in terms of relevance and necessity of detailed comparative study of the Russian and Spanish advertising legislations.

The need for comparative study of legal regulation of advertising relationships is caused, in general, by the factors, which are common to this area of scientific activities. That is, in the objective aspect, by increasingly greater integration of different nations and countries, and in the subjective aspect – by perception of necessity of developing multilateral relationships, and harmfulness of a particular country’s isolation[1] for its development.     

Along with these considerations, it should be admitted that this area of studies is given extremely little attention in the national legal literature[2] and science. The most significant scientific works in this area are dissertation studies by Yu. V. Cheryachukin, dealing with legal regulation of advertising activities in the Russian Federation and foreign countries[3]. The essential significance of the abovementioned works that have become some kind of outpost for further study of the problems of legal regulation of advertising relations has been recognised, and it should be pointed out that under current conditions in many respects they could not be considered topical as since the moment of the pursuance thereof over 11 years have passed. The subjects of their study were legal regulation of advertising activities and legal aspect of functioning thereof from the perspective of the then-effective advertising legislation of the Russian Federation[4], which underwent substantial transformation in 2006 when a new version of the law on advertising was adopted[5]. Besides, it should be noted that they could not also be called sufficient to the full extent for the purposes of comparative study.

So, in the works by Yu. V. Cheryachukin, a significant consideration is given not to the comparative study of legislation of foreign countries, but to the experience of comparative study; the scope of such studies does not enable to cover all countries, even the most developed ones, in terms of legal regulation of advertising relationships, let alone basic institutions of their advertising legislation. The main part in the comparative study is analysis of the Russian legislation, the US and European Union legislations. At the same time, national legislation of other countries, including European ones, is studied to a substantially lesser degree, which is insufficient to build a holistic picture for integrated assessment of Russian and foreign legislation. In the research conducted by Yu. V. Cheryachukin, considerable attention is given to applied issues (for instance, advertising in law enforcement) at the boundary of the author’s research topics (legal regulation of advertising activities in the Russian Federation and foreign countries), which probably has not allowed any further analysis of national legislation of particular countries whose experience of legal regulation of advertising relationships has a considerable value for comparative study.

The work by E.V. Pavlovets (Problems of Legal Regulation of Relationships in Regard to Commercial Advertising in Russia and the USA) is a special comparative legal study of the legal systems in Russia and the USA. Their legal systems belong to different legal families, which does not enable us to use the experience of the USA in legal regulation of advertising relationships in Russia to the full. Besides, the dissertation by E.V. Pavlovets deals with legal regulation in regard to commercial advertising solely. Besides, according to the author’s own admission, he “instead of  comparing legal regulation … concentrates on separate issues of legal regulation, the  significance of which is shown in legislative and enforcement practices“[6]. In the work by A.A. Kislitsyn (Deceptive Advertising: Definition and Problems of Classification: Experience of Comparative Legal Study of the Russian and American Law), one can also find analysis of only a particular kind of inappropriate advertising (deceptive advertising). 

At present, Russia extensively claims leading positions amidst world advertising markets. So, in 2011, the Russian advertising market volume was equal to that of the pre-crisis year (263.5 bln. rub.). In contrast with 2010, investments of advertisers increased by more than 20%, and, by the estimates of specialists, in 2014 Russia could be among the top ten of the world’s advertising nations. In 2012, the volume of the Russian advertising market was estimated at 9 bln. US dollars, ranking fifth in the ЕМЕ Аregion (countries of Europe, Middle East and Africa) after Germany, Great Britain, France and Italy. By some estimates, by 2016, Russia will be the fourth largest advertising market in this region[7], ahead of Italy in these terms.

By all means, the dynamic development of advertising market, especially in conditions of international economic integration and business competition, is impossible without effective legal regulation of corresponding relationships by national legislation, which, under such circumstances, places special requirements concerning competitive ability among the leading foreign advertising practices.

Improvement of legal regulation of advertising relationships exclusively from the perspective of the national legislation and practice is accompanied by a number of negative factors which may result in low efficiency of such process. First of all, it is instability of national advertising legislation, its continual changes and amendments. Partly, this happens due to the fact that advertising relationships in Russia became fully regulated on a statutory level only in 1995, which is certainly not comparable with the history and experience of legal regulation of advertising relationships abroad. And, in this regard, experience of the countries that started development in this direction simultaneously with Russia, i.e., first and foremost of CIS countries, is not of any substantial value as well. Moreover, development of legal regulation of advertising relationships of CIS countries is carried out mainly in accordance with general standards set by the Agreement on Cooperation between CIS Member States in the sphere of regulation of advertising activities (Moscow, December 19, 2003)[8] and, correspondingly, has drawbacks common with the Russian legislation.

In 1995, a law on advertising activities was adopted, and in 2006, its new version was practically reversed, which shows the instability of advertising legislation of the Russian Federation. Also, before the adoption of a new version (i.e. during the period of about 9 years), the law of 1995 had been amended 8 times.  But after the adoption of the new law of 2006 (i.e. almost within 7 years) about 30 amendments have been already made, and several of them are still under consideration at the State Duma of the Federal Assembly of the Russian Federation. To put this into perspective, we may give an example of the Spanish legislation, where the law on advertising was adopted in 1988[9], and since that time (i.e. almost for 25 years) it has been amended only 3 times. Such a stability definitely attends to the effectiveness of Spanish advertising legislation, serves as an assurance of market stability and is worth studying.

Apart from this circumstance, reference to the Spanish advertising legislation is explained by the following: 1) Spain was one of the leaders on the European advertising market for a long time[10]; 2) Spain, as well as Russia, in contrast with such leaders of advertising market, such as the USA and Great Britain, falls under the Roman legal family[11]; 3) out of all developed countries only Spain has a special advertising law[12], and the practice of such regulation has a substantial history[13]; 4) Spain is a member of the European Union, and its national advertising legislation goes in line with the European Union standards in the sphere of advertising[14]; 5) Spanish advertising market development has both positive periods of development and  declines; that is why the industry-specific legislation development arouses particular interest for studying; 6) Spain also has a negative experience of legal regulation of advertising relations for which it was brought to account by the International Commission[15].

Taking into consideration all that has been said above, we suppose that the degree of relevance of studying legal regulation of advertising activities in Russia and Spain is rather high, and its results will be of interest not only to Russian specialists, but to Spanish colleagues as well. Therefore, we call upon scientific community and young scientists to turn their attention to this particular direction.



[1] M.N. Marchenko. Sravnitel'noe pravovedenie: rukovodstvo [Comparative Law: Manual]. Second edition, revised and enlarged. Moscow, 2013, pp. 3 – 4. (in Russian)

[2] Foreign legislation which regulates advertising relationships and its practical application on a limited scale was not studied in the bibliography deeply enough, except for some of its separate aspects only (see, for instance: A.V. Minbaleev. Primenenie v Rossii ogranichitelnogo opyta v reklame tabaka soglacno datskomu zakonodatel'stu antitabachnoi‘ kontseptsii [On Usability in Russia of Tobacco Advertising Limitation Experience According to Danish Legislation in View of Antismoking Conception// Mezhdunarodnoe publichnoe i chastnoe pravo [International Public And Private Law]. 2011, No. 4, pp. 35 – 37; D. Evans. Otsenka novykh media v sotsial'noi‘ reklame realizuemoi‘ kompaniiami v SSHA: metody, priznaki dela [Valuation of New Media in Social Advertising Campaign Realization in the Usa: Methods, Evidences, Cases], Reklama i zakon [Advertising And Law]. 2010, No. 2, pp. 22 – 24; D. Perlov. Sotsial'naia reklama i MSM v plane amerikanskogo opyta (doklad 2009) [Social Advertising and MSM in Terms of American Experience (Report of 2009)// Reklama i zakon [Advertising And Law]. 2010, No. 2, pp. 9 – 10; M.D. Dedova. Raskrytie informatsii i reklamy tsennykh bumag: razlichiia v pravovom regulirovanii v Rossii i SSHA [Information Disclosure and Advertising of Securities: Differences in Legal Regulation in Russia and the USA]// Predprinimatel'skoe pravo [Entrepreneurial Law]. 2012, No. 3, pp. 44 – 48; N.N. Sedova, E.V. Luzik, A.V. Kuznetsov. Farmatsepticheskaia reklama v MSM stran Evropeyskogo Soyuza i Rossii: pravovaia vzaimodopolniaemost' i eticheskii invariant [Pharmaceutical Advertising in MSM of European Union Countries and Russia: Legal Complementarity and Ethical Invariant], Meditsinskoe pravo [Medical law]. 2010, No. 4, pp. 12 – 17; A.V. Minbaleev. Kitaiskaia model' pravovogo regulirovaniya reklamy [Chinese Model of Legal Regulation of Advertising]. Reklama i zakon [Advertising and law]. 2009, No. 2. pp. 29 – 32; A.V. Minbaleev. Pravovoe regulirovanie reklamy v Yaponii [Legal Regulation of Advertising in Japan]// Reklama i zakon [Advertising and law]. 2009, No. 1 (gives in accordance with Legal reference system ConsultantPlus); N.V. Makareiko. Administrativnaia otvetstvennost' za pravonarusheniia v oblasti reklamy: sootnoshenie rossiiskogo i belorusskogo zakonodatel'stva [Administrative Responsibility for Offences in Advertising Area: Correlation of the Russian and Belorussian Legislation. Reklama i zakon [Advertising and law]. 2006, No. 1. The text is available in Consultant Plus legal information system (in Russian).

[3] See: Yu.V. Cheryachukin. Pravovoe regulirovanie reklamnoy deyatel'nosti v Rossiiskoy Federatsii i zarubezhnykh stran (sravnitel'nyy opyt issledovaniia): annotatsiia iz tezisov na soiskanie uchenoi’ stepeni kandidata yuridicheskikh nauk [Legal Regulation of Advertising Activity in Russian Federation and Foreign Countries (Comparative Study Experience): Abstract from the thesis for the degree of Candidate of Law]. Volgograd, 1998; Yu.V. Cheryachukin. Problemy pravovogo regulirovaniia reklamy v Rossii i zarubezhnykh stranakh: annotatsiia iz tezisov na soiskanie uchenoi’ stepeni kandidata yuridicheskikh nauk [Problems of Legal Regulation of Advertising in Russia and Foreign Countries: Abstract from the thesis for the degree of Doctor of Law]. Rostov-on-Don, 2002. Available at URL: http://law.edu.ru/book/book.asp?bookID=107547 (date of reference: July 26, 2013). It is necessary to point out, that at a level of thesis to separate issues of legal regulation of relations in the sphere of commercial advertising in Russia and USA related works by E.V. Pavlovets. Problemy pravovogo regulirovaniia otnoshenii’ v otnoshenii kommercheskoi’ reklamy v Rossii i SSHA: sravnitel'noe issledovanie: annotatsiia iz tezisov na soiskanie uchenoi’ stepeni kandidata yuridicheskikh nauk [Problems of Legal Regulation of Relations in Regard to Commercial Advertising in Russia and the USA: Comparative Study: Abstract from the thesis for the degree of Candidate of Law]. Мoscow, 2002, as well as A.A. Kislitsin. Obmanchivaia reklama: opredelenie i problemy kvalifikatsii: opyt sravnitel'no-pravovogo izucheniia prava v Rossii i SSHA: annotatsiia iz tezisov na soiskanie uchenoi’ stepeni kandidata yuridicheskikh nauk [Deceptive Advertising: Definition and Problems of Qualification: Experience of Comparative Legal Study of Law in Russian and the USA: Abstract from the thesis for the degree of Candidate of Law]. Мoscow, 2006),  in Russian.

[4] Federal  law of the Russian Federation dated July 18, 1995 No. 108-FZ “O reklame” [“On Advertising”], Vestnik Zakonodatel'stva RF [Legislation Bulletin of RF]. July 24, 1995,  No. 30, art. 2864.

[5] Federal  law of the Russian Federation dated March 13, 2006 No. 38-FZ “O reklame” [“On Advertising”], Vestnik Zakonodatel'stva RF [Legislation Bulletin of RF]. March 20, 2006, No. 12, art.1232. Hereinafter – Russian Federation advertising law.

[6] E.V. Pavlovets. Problemy pravovogo regulirovaniia otnoshenii v otnoshenii kommercheskoi‘ reklamy v Rossii i SSHA: sravnitel'noe issledovanie: annotatsiia iz tezisov na soiskanie uchenoi’ stepeni kandidata yuridicheskikh nauk [Problems of Legal Regulation of Relations in Regard to Commercial Advertising in Russia and the USA: Comparative Study: Abstract from the thesis  for the degree of Candidate of Law]. Мoscow, 2002, p. 7 (in Russian).

[7] Yesterday and tomorrow through the eyes of operator. Available at URL: http://outdoor.ru/analytics/16947/(date of reference: July 26, 2013).

[8] Commonwealth. The Commonwealth of Independent States Council of the Heads of States and Heads of Governments Newsletter. No. 1(44), pp. 187 – 192.

[9] La Ley 34/1988, de 11 de noviembre de 1988, General de Publicidad, Boletín Oficialdel Estado núm. 274 de 15 de Noviembre de 1988. Hereinafter – Advertising law of Spain.

[10] For the first quarter of 2005 Spain ranked seventh in the advertising market volume in the world (Advertising has become even more, URL: www.ruan.ru/outdoor/articles/03/ (date of reference: July 31, 2013)). As of 2007, the global development level of Spanish advertising market, determined on the basis of expenses ratio for 1 000 people, ranks 13th in the world, while Russia ranked in the fourth ten by this indicator (E.I. Ekgard. Improvement of analysis concerning influence of factors on advertising world market, Available at URL: http://be5.biz/tkonomika1/r2012/3300.htm. (date of reference: July 31, 2013)).

[11] Ref.: F.M. Reshetnikov, U.E. Batler, V.V. Boytsova, L.V. Boytsova, V.N. Dodonov, V.E. Krutskikh, O.R. Mulukaeva, T.A. Reshetnikova, L.R. Syukiyainen. Pravovye sistemy stran mira. Entsiklopedicheskii‘ spravochnik [Legal Systems of Countries Worldwide. Encyclopedic Reference book]// Resp.ed. – LLD, prof. A.Ya. Sukharev. – Second ed., revised and expanded. Мoscow, 2001, p. 270.

[12] See: I.V. Krylov. Teoriia i Praktika Reklamy v Rossii [Theory and practice of advertising in Russia]. Moscow, 1996, p. 99. This term holds true only for developed countries, by virtue whereof the argument of E.Yu. Matveev, that “advertising laws are applicable to only two countries in the world (Spain and Russia)” (E.Yu. Matveev. Sotsial'nye i pravovye aspekty regulirovaniia reklamnoi‘ deyatel'nosti [Social and legal aspects, advertising regulation]. Lib.: Advertising: Manual/Edited by V.D. Sekerin. Moscow, 2013, p.66) is correct, only regarding that, along with Spain, Russia, among the most developed countries, also has such a law. Special laws regulating advertising relations (besides Russia and Spain), have been adopted almost in all countries of CIS and Baltic, which are not of substantial interest to us for another reasons listed above.

[13] The previous advertising law in Spain No.61/1964 was adopted on June 11, 1964.

[14] For instance, such requirements were set by Council Directive of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (84/450/EEC) (Official Journal No. L 250, September 19, 1984, pp. 17 – 20), which were given proper weigh in advertising law of Spain of 1988. Henceforth, taking into account series of amendments, the Directive was canceled, and, instead, a new version summarizing amendments was adopted (Council Directive of September 10, 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising (2006/114/EC) (Official Journal No. L 376, 2 December 27, 2006, pp. 21 – 27)). 

[15] For instance, in 2010 Spain was brought to account by the European Union by way of heavy fine for not meeting the requirements of dissemination of television advertising regulation (for further information please ref.: Jaime Rodríguez Díez, Letrado de Díez& Romeo.  El TJUE condena a Españaporinfringir el régimen de publicidad y compromete el nuevoReglamento de publicidadtelevisivaCondena a España del Tribunal Europeoporhorariosexcesivos de publicidad; Sentencia del TJUE, de 24 de noviembre de 2011, en el asunto C-281/09 (available at:URL: http://www.legaltoday.com/practica-juridica/supranacional/d_ue/el-tjue-condena-a-espana-por-infringir-el-regimen-de-publicidad-y-compromete-el-nuevo-reglamento-de-publicidad-televisiva, last visited November 24, 2013).

Bibliography:

  1. A.A. Kislitsin. Obmanchivaia reklama: opredelenie i problemy kvalifikatsii: opyt sravnitel'no-pravovogo izucheniia prava v Rossii i SSHA: annotatsiia iz tezisov na soiskanie uchenoi’ stepeni kandidata yuridicheskikh nauk [Deceptive Advertising: Definition and Problems of Qualification: Experience of Comparative Legal Study of Law in Russian and the USA: Abstract from the thesis for the degree of Candidate of Law]. Мoscow, 2006. in Russian.
  2. A.V. Minbaleev. Kitaiskaia model' pravovogo regulirovaniya reklamy [Chinese Model of Legal Regulation of Advertising]. Reklama i zakon [Advertising and law]. 2009. № 2. pp. 29–32.
  3. A.V. Minbaleev. Pravovoe regulirovanie reklamy v Yaponii [Legal Regulation of Advertising in Japan]// Reklama i zakon [Advertising and law]. 2009. № 1.
  4. A.V. Minbaleev. Primenenie v Rossii ogranichitelnogo opyta v reklame tabaka soglacno datskomu zakonodatel'stu antitabachnoi‘ kontseptsii [On Usability in Russia of Tobacco Advertising Limitation Experience According to Danish Legislation in View of Antismoking Conception// Mezhdunarodnoe publichnoe i chastnoe pravo [International Public And Private Law]. 2011. № 4. pp. 35–37.
  5. D. Evans. Otsenka novykh media v sotsial'noi‘ reklame realizuemoi‘ kompaniiami v SSHA: metody, priznaki dela [Valuation of New Media in Social Advertising Campaign Realization in the Usa: Methods, Evidences, Cases], Reklama i zakon [Advertising And Law]. 2010. № 2. pp. 22–24.
  6. D. Perlov. Sotsial'naia reklama i MSM v plane amerikanskogo opyta (doklad 2009) [Social Advertising and MSM in Terms of American Experience (Report of 2009) // Reklama i zakon [Advertising And Law]. 2010. № 2. pp. 9–10.
  7. E.V. Pavlovets. Problemy pravovogo regulirovaniia otnoshenii v otnoshenii kommercheskoi‘ reklamy v Rossii i SSHA: sravnitel'noe issledovanie: annotatsiia iz tezisov na soiskanie uchenoi’ stepeni kandidata yuridicheskikh nauk [Problems of Legal Regulation of Relations in Regard to Commercial Advertising in Russia and the USA: Comparative Study: Abstract from the thesis  for the degree of Candidate of Law]. Мoscow, 2002. p. 7 (in Russian).
  8. E.Yu. Matveev. Sotsial'nye i pravovye aspekty regulirovaniia reklamnoi‘ deyatel'nosti [Social and legal aspects, advertising regulation]. Lib.: Advertising: Manual/Edited by V.D. Sekerin. Moscow, 2013. p. 66.
  9. F.M. Reshetnikov, U.E. Batler, V.V. Boytsova, L.V. Boytsova, V.N. Dodonov, V.E. Krutskikh, O.R. Mulukaeva, T.A. Reshetnikova, L.R. Syukiyainen. Pravovye sistemy stran mira. Entsiklopedicheskii‘ spravochnik [Legal Systems of Countries Worldwide. Encyclopedic Reference book]// Resp.ed. – LLD, prof. A.Ya. Sukharev. – Second ed., revised and expanded. Мoscow, 2001. p. 270.
  10. I.V. Krylov. Teoriia i Praktika Reklamy v Rossii [Theory and practice of advertising in Russia]. Moscow, 1996. p. 99.
  11. M.D. Dedova. Raskrytie informatsii i reklamy tsennykh bumag: razlichiia v pravovom regulirovanii v Rossii i SSHA [Information Disclosure and Advertising of Securities: Differences in Legal Regulation in Russia and the USA] // Predprinimatel'skoe pravo [Entrepreneurial Law]. 2012. № 3. pp. 44–48.
  12. M.N. Marchenko. Sravnitel'noe pravovedenie: rukovodstvo [Comparative Law: Manual]. Second edition, revised and enlarged. Moscow, 2013. pp. 3–4. (in Russian)
  13. N.N. Sedova, E.V. Luzik, A.V. Kuznetsov. Farmatsepticheskaia reklama v MSM stran Evropeyskogo Soyuza i Rossii: pravovaia vzaimodopolniaemost' i eticheskii invariant [Pharmaceutical Advertising in MSM of European Union Countries and Russia: Legal Complementarity and Ethical Invariant], Meditsinskoe pravo [Medical law]. 2010. № 4. pp. 12–17.
  14. N.V. Makareiko. Administrativnaia otvetstvennost' za pravonarusheniia v oblasti reklamy: sootnoshenie rossiiskogo i belorusskogo zakonodatel'stva [Administrative Responsibility for Offences in Advertising Area: Correlation of the Russian and Belorussian Legislation. Reklama i zakon [Advertising and law]. 2006. № 1.
  15. Yu.V. Cheryachukin. Pravovoe regulirovanie reklamnoy deyatel'nosti v Rossiiskoy Federatsii i zarubezhnykh stran (sravnitel'nyy opyt issledovaniia): annotatsiia iz tezisov na soiskanie uchenoi’ stepeni kandidata yuridicheskikh nauk [Legal Regulation of Advertising Activity in Russian Federation and Foreign Countries (Comparative Study Experience): Abstract from the thesis for the degree of Candidate of Law]. Volgograd, 1998.
  16. Yu.V. Cheryachukin. Problemy pravovogo regulirovaniia reklamy v Rossii i zarubezhnykh stranakh: annotatsiia iz tezisov na soiskanie uchenoi’ stepeni kandidata yuridicheskikh nauk [Problems of Legal Regulation of Advertising in Russia and Foreign Countries: Abstract from the thesis for the degree of Doctor of Law]. Rostov-on-Don, 2002.