Statistics on violations of the Federal Law “On Advertising”, published on the official website of the Federal Monopoly Service (FAS), are disappointing: in 2016, the agency reviewed more than 12 thousand applications, initiated almost 5 thousand cases of administrative violations and collected fines totaling over 129 million rubles.
If we take a closer look at the structure of advertising legislation uruguay phone number library violations, we will see that advertising transmitted via telecommunication networks accounts for as much as 13.29% – almost as much as advertising of medical services, medicines and dietary supplements (13.67%). This is more than false advertising (10.81%), misleading advertising (8.09%), and advertising in printed publications (6.7%). The leading position is occupied by advertising of financial services (14.3%), only slightly ahead of advertising in operator communication networks.
FAS has set its nets
At the end of last year, the FAS sent a letter to telecom operators “On the distribution of advertising over telecommunications networks via SMS messaging,” in which it described cases in which an operator is recognized as an advertising distributor in the following cases:
1. Taking into account the circumstances of the case and existing contractual obligations.
2. If the operator had the legal and technical ability to evaluate the content of the SMS mailing and check with the customer whether the subscriber had consented to receive it.
3. In case of detection of advertising distributed via SMS messages with “number substitution”, i.e. from short and text numbers.
It is important that FAS letters are essentially regulatory acts, and regional FAS offices, when considering complaints from users, are guided by these letters in full when initiating administrative cases.
Shadow on the fence
"If the third case is clear, then what the FAS meant in the first two requirements remains a mystery," says Mikhail Khokholkov, a leading lawyer at the Intellect-S group of legal companies. According to him, anything can be pulled under the wording "taking into account the circumstances of the case and existing contractual obligations," but the second requirement not only contradicts the legislation in the field of personal data protection (the absence of a legal basis for reading correspondence), but is also technically impossible to implement in communication networks. How will operators be able to assess the content of SMS mailings? It is unclear.
In Mikhail Khokholkov’s legal practice, there is a case where an operator was recognized as an advertising distributor and fined simply for not indicating the “18+” sign in the distribution of an advertising announcement for a film.
