Advertising & Marketing 2020

Last Updated October 09, 2020

Congo-Brazzaville

Law and Practice

Authors



Cabinet Gomes is a leading multidisciplinary law firm established in Pointe-Noire and Brazzaville by a secondary office. It offers assistance and legal solutions adapted to the needs of the main international companies and national authorities operating in the Republic of Congo. With a team of five lawyers, the firm intervenes, among others, regularly in company law; taxation; oil and gas; mining; litigation and arbitration; labour law; banking, financial and stock market law; mergers and acquisitions; environmental law; real estate law; civil law and contracts; administrative law; customs law; project finance and PPP; energy law; negotiations; and lobbying.

In the Republic of Congo, or Congo-Brazzaville, Title VI and Title VII of Law No 8 of 12 November 2001 on freedom of information, and Communication Law 27-2020 of 5 June 2020 on cybersecurity, regulate advertising practices.

Congo-Brazzaville is one of six member countries of the Central African Economic and Monetary Community (CEMAC). As such, at a regional level, marketing and advertising practices are regulated by the CEMAC through Directive No 2/19-UEAC-639-CM-33 of 22 March 2019 aiming to harmonise consumer protection within the CEMAC zone.

It is important to note that the Republic of Congo is still a developing jurisdiction and, to a certain extent, much of business is still sometimes conducted on an informal basis. As a consequence, many areas lack a rigid legal framework and where the law is silent, local authorities will look at French and European law for guidance.

Regulation through Competition and Consumer Protection

In Congo-Brazzaville, the regulatory authorities charged with enforcing the laws and regulations governing advertising practices are spread between competition and consumer protection regulating bodies.

By Decree 2010-40 of 28 January 2010, the Congolese government established the directorate for competition and the repression of commercial fraud. It is an organ that provides technical assistance to the Ministry of Commerce.

The Ministry of Commerce has been responsible for two Bills, one on competition and the other on the protection of the consumer. The Competition Bill provides for the creation of a "National Competition Authority" and the second project provides for the creation of a "National Committee for Consumer Protection".

The National Competition Authority is a decision-making body while the National Committee for Consumer Protection is an advisory body. The National Competition Authority works in collaboration with the Directorate General for Competition and Repression of Fraud, and sectoral competition regulation agencies.

The CEMAC Directive calls for the creation of a National Council of Consumption (Conseil National de la Consommation) in each of its member countries where this has not already been established.

Regulation through Communication and Advertising

Article 212 of the Constitution of 25 October 2016 established the Superior Council of Freedom of Communication (Conseil Supérieur de la Liberté de Communication or CSLC). As an independent administrative authority, the CSLC is responsible for regulating freedom of communication, ensures the proper exercise of freedom of information and communication and also monitors advertising practices.

Within the CSLC there is a commission for the verification of advertising tasked to monitor and enforce fair and safe advertising practices. The CSLC has the option of self-referral. When an advertiser is guilty of manifest and repeated violations of the laws and regulations governing advertising, the CSLC has the power to impose monetary sanctions.

In Congo-Brazzaville, liability for deceptive advertising is attributed to the “opérateur économique” which is the individual or legal entity, public or private, which makes goods or a service available to the consumer on the market as part of an habitual or organised activity. The individual owners or shareholders of the company are not usually liable and are protected by the corporate veil.

Third parties can be found liable if it is shown that they knew that the advertising they placed on the market was deceptive or misleading. In such cases, the law considers the advertisers as authors or co-authors of crimes committed by way of the press or any other means of communication. They must retract and correct the deceptive advertising and are also subject to fines.

In addition to the CSLC, which monitors advertising practices, the ministry of commerce has a director of competition and director of repression of commercial fraud, both having power to regulate certain aspects of advertising practices. However, these two positions have yet to be used in that regard.

A private right of action is available to consumers to challenge a particular advertising practice that caused harm to consumers such as deceptive practice, false advertising, or the omission of an important fact concerning the goods or service involved. In such cases, the consumers can take action through consumer associations or directly with the local courts to seek remedies. The remedies available include refund, compensation in case of actual damage or injunctions, and the court can also direct the advertiser to withdraw/correct any false or misleading information, in addition to monetary fines.

A few consumer associations already exist in Congo, such as L'Observatoire congolais des droits des consommateurs and the Collectif des associations des consommateurs, with the aim of representing consumers and facilitating dispute resolution. However, to date their activity is broad and there is no existing precedent case related to advertising practices.

As a developing jurisdiction, there have not yet been any significant cases regarding deceptive advertising in Congo-Brazzaville. However, there are additional regulations for the tobacco, alcohol, and medicine industries, and certain other areas.

Tobacco

The Law 12-2012 of 4 July 2012:

  • prohibits tobacco advertising in the media (radio, television, billboards, posters and the press);
  • prohibits all sponsoring of any sport, music, fashion or other cultural events by the tobacco industry, including sellers and importers of tobacco products;
  • prohibits the promotion of tobacco in bars, hotels, restaurants and nightclubs; and
  • prohibits the promotion of tobacco brands within a radius of two metres around the points of sale of tobacco products.

Decree No 2018-218 of 5 June 2018 also sets the terms of application of an advertising ban on the promotion of tobacco, and its by-products. In fact, advertising and product presentation of tobacco and its derivatives on the internet or at the point of sale are strictly prohibited. The ban is comprehensive and extends to all presentations and visibility of tobacco, its derivative products or images inside and outside points of sale. The ban also applies to media organisations, on board ferries, airplanes and in ports and airports, bus and train stations.

Sanctions include fines ranging from XAF4–10 million against publishers and directors of radio, television and any other media.

Alcohol

In an effort to curb alcoholism in the country, and in response to heavy promotions in the alcohol industry making beverages at low prices, the government banned the promotion of alcoholic beverages at a discounted price in October 2018. However, in practice, alcoholic beverages can be seen promoted throughout the country without any sanctions.

Medicine

Advertising of medicines and pharmaceutical establishments is only allowed under the conditions set by order of the Ministry of Health and Social Affairs.

For medical professionals

It is forbidden to advertise to the public drugs that are reimbursable by social security, and/or drugs on a list of poisonous substances.

The only possible channel of information is through the medical profession, in particular doctors, pharmacists, dental surgeons, and midwives.

Pharmaceutical companies regularly keep practitioners informed through their networks of medical representatives, but also through the medical press.

For the general public

General public drugs can be purchased without a medical prescription from pharmacists. Any advertisement in the press or on the radio, by means of posters, displays, window panels or films, is always the subject of an authorisation prior to the diffusion, delivered by order of the Ministry of Health and Social Affairs.

Off-Limit Marketing

The following items cannot be used for marketing purposes:

  • the national anthem;
  • the national flag;
  • the Republic’s armouries;
  • military crests;
  • political parties' insignia;
  • medals and other honorary distinctions; and
  • all or any part of the constitution.

Any marketing practice that is prejudicial to the physical integrity of women is prohibited and so is the advertising of a particular sex or gender having predominance over the other.

The general standard for determining whether advertising claims are deceptive or misleading looks at principles of good faith, whether the advertising claim alters or can substantially alter consumer behaviour in engaging with the advertising, whether the advertising claim could be against the interest of a single consumer or group of consumers, and whether the advertising claim is prone to misleading a consumer, even if the information is factually correct.

These principles would apply to a wide range of information including the existence, identity or nature of the goods or service, and characteristics of the goods or service such as:

  • availability;
  • quality;
  • any type of dangers involved with using the product or service;
  • any type of sponsoring;
  • pricing; or
  • consumer rights attached to any guarantees in relation to the goods or service involved.

To date, the laws in Congo-Brazzaville are silent on the distinction of express and implied claims and provide little to no guidance on the process under which advertising claims would be objectively measured in that sense.

There are currently no local laws providing guidance as to what the applicable standard of substantiation in advertising claims is in Congo.

While the CSLC and the commission for the verification of advertising exist to conduct testing of advertising claims, there is currently nothing available to provide guidance on the applicable testing done to verify advertising claims.

The same issue with the lack of guidance from local law and the absence of transparency in the internal process of the CSLC and the commission for the verification of advertising does not allow us to know if human clinical studies are required for certain claims in Congo.

The regulations in Congo-Brazzaville require certain claims to provide information that is clear, understandable, exact or sufficiently able to inform consumers prior to obtaining or using goods or a service. The information must be in the official language of the country, which in Congo’s case is French.

These specific rules govern:

  • the quality of the goods and services;
  • country of origin;
  • the identity and contact information of the person or entity making the goods or service available;
  • the identity and contact information of the person or entity the consumer can contact for complementary information or in case of dispute;
  • an accurate description of the goods or service;
  • the legal and commercial warranties associated with the goods and service;
  • warning about any potential dangers linked to the goods or service and ways to prevent them;
  • the environmental impact of the product; and
  • the price.

In the Republic of Congo, comparative advertising is allowed, and it is permissible to identify a competitor by name. However, it is forbidden to make misleading or disparaging advertising claims that would identify a competitor (even if not directly named), a competitor’s product or service, or anything related to a competitor’s advertising. The guiding principle of comparative advertising is fairness.

A comparative advertisement must relate to similar goods or services. If they are to meet the same needs, the goods or services must also be of the same nature.

The object of the comparison should objectively relate to relevant, quantifiable, verifiable and representative characteristics. The comparison can therefore not be based on a value judgement, such as an assessment of the design of a product. Price is an element of comparison which, on the contrary, appears to be relevant and easily quantifiable.

Similar to general advertising claims, for comparative advertising, the claims must not confuse the consumer, take advantage of the competitor’s notoriety, or disparage the competitor’s name, or the goods or services such competitor offers to consumers. A comparative advertising claim may not omit material information about the competitor’s goods or products which could mislead the consumer.

In determining whether comparative advertising claims are truthful, the advertiser has the burden of proof to show that the claims were relevant to and quantifiable, verifiable and representative characteristics of the product and must also show that any information provided or omitted did not or could not have misled consumers.

In general, in order to challenge claims made by a competitor, an advertiser can carry out its own advertising campaign comparing its products or services with those of its competitor while respecting the legal rules of comparative advertising, or sue its competitor for unfair competition if it considers that the competitor has not respected the rules. Because it is not a common practice in the Republic of Congo, there are few to no precedents involving comparative advertising disputes that could serve as a major case to provide guidance.

The Congolese Digital Environment

With the fast development of online access and especially e-commerce in the world, Congo came to realise that it needed to invest in the resources necessary for the emergence of a viable digital economy in the country. To this end, the country recently started, and is still in the process of, reshaping the legal framework to ensure the reliability of all commercial transactions.

In April 2019, Congo launched the National Development Strategy of the Digital Economy called "CONGO DIGITAL 2025". The aim is to develop its technological and digital sector and set laws and regulations that are on par with other already established jurisdictions.

National Information Systems Security Agency

To that effect, the National Assembly and the Senate unanimously adopted, during their ordinary sessions closed on 13 August 2019 in Brazzaville, a Bill establishing the National Information Systems Security Agency (ANSSI) in the Republic of Congo to regulate the use of consumer data for the purposes of targeting or re-targeting consumers with advertising.

ANSSI has, among other things, the role of monitoring activities related to cryptology, carried out by public and private organisations in the national territory. The body will also be responsible for managing information systems security incidents; monitoring the execution of plans and programs relating to computer security; and ensuring co-ordination between stakeholders in this area. It will also involve issuing approvals to information systems security organisations and issuing specific authorisations to providers of electronic transaction security services, as well as imposing administrative penalties.

A Late Bloomer in Data Protection

On 10 October 2019, Congo adopted the law on data protection. Following on that advance, it is only recently, on 5 June 2020, that Congo adopted Law 27-2020 on cybersecurity and, on 20 August 2020, Congo ratified the African Union convention on cybersecurity and the protection of personal data of 27 June 2014.

Online/Social Media Advertising

In Congo, all advertising, in any form whatsoever, accessible through an electronic communication service, must clearly be identified as such. It must include the word "advertising" in a legible, visible and unambiguous manner and the person or legal entity on whose behalf the advertisement has been made must be clearly identified. This requirement is, therefore, the same for all websites and social media platforms.

Today, there are still many areas of digital marketing that are not yet regulated in Congo and on which the law does not yet provide guidance. Yet, since Congo seems to be rapidly addressing the current voids in its legislation, it is to be expected that such guidance will be provided soon and this practice guide will be updated accordingly.

Due to the limited guidance on the particular local laws when it comes to advertising on social media, marketers in the Republic of Congo tend to follow European and French guidelines on the subject. Until the legal framework is completely defined, local and international marketers will have to operate in a rapidly changing legal environment and will have to adapt to the laws of Congo as they evolve. Because all the laws concerning online marketing are recent, it is hard for already established entities to be aware of them, however, this difficulty does not relieve them of their responsibility to abide by the laws of Congo.

Under general advertising and agency rules, an advertiser could be held liable for content posted by others on the advertiser’s site or social media channels because it has the duty to monitor its own platform and must make sure that advertising content posted is true, accurate and not misleading.

Social media advertising must include the word "advertising" in a legible, visible and unambiguous manner and the person or legal entity on whose behalf the advertisement has been made must be clearly identified.

All major social media platforms in Congo are allowed and are not subject to particular rules or regulations.

Congo does not yet have any rules that apply to native advertising.

Access to the internet in Congo is still a luxury for most consumers due to its high price, which is evident by the fact that, according to the Internet World Statistics, as of December 2019, internet users in Congo only represented 13.3% of the population. In that small segment, however, significant growth can still be seen in the use of influencer campaigns from marketers on TV, print and social media outlets. Whether through local artists, athletes or local/international individuals with a strong following on social media, brands both local and international have taken to social media to market their goods and services. Especially during the COVID-19 lockdown period, when marketers had a readily attentive audience to capture, Congo has seen a major rise in influencers across various generations.

Influencers are not subject to special rules other than the general rules they have to abide by while using the various platforms and while engaging in online marketing (they must use the word “advertisement” when promoting online content, they must not intentionally deceive prospective consumers, and they must not make claims about the product they know to be false).

Advertiser Liability

Under general advertising and agency rules, an advertiser could be held liable for content posted by its influencers (such as under the principles of deceptive advertising practices). In particular, if the advertiser knew or was negligent with the product or service at issue and the statements made by the influencers were within the scope of authority defined by the parties’ arrangement.

Influencer Liability

Similarly, if an influencer independently decides to make claims he or she knows not to be true, he or she could be liable for those statements. The advertiser does have a duty to review and monitor its influencers and should ensure that all false or misleading statements regarding its product or service are promptly retracted and corrected within the same media in which they were originally published.

In the Republic of Congo, direct prospecting by means of a call machine, a fax machine or email using, in any form, the contact details of a person who has not expressed their consent prior to receiving direct marketing by this means is prohibited.

However, direct prospecting by email or telephone is authorised if:

  • the recipient's contact details were collected directly from them, in compliance with the provisions of the regulations in force relating to IT;
  • this was done at the time of the sale of goods or services;
  • if direct prospecting concerns similar products or services provided by the same person or business; and
  • if the recipient is offered, expressly and without ambiguity, the possibility of responding, free of charge (except for fees related to the transmission of the refusal).

Congo adopted the Law 37-2017 regarding electronic transactions and addressing direct email marketing using personal information collected with the recipient’s consent, on 12 December 2019. Since then, marketers have been allowed to contact those recipients whose personal information their services had collected prior to the law coming into effect, for the purposes of direct marketing for a period of six months. Past that period, the recipients were considered to have declined any further use of their personal information for direct marketing.

It is also prohibited to transmit, for the purpose of direct marketing, messages by means of unmanned automatic call machines, fax machines and electronic mail, without indicating any valid contact details to which the recipient can make a request that these communications cease free of charge, other than those related to the transmission of it. Similarly, it is forbidden to conceal the identity of the person on whose behalf the communication is made and to mention an object unrelated to the service or the service offered.

Any violation is punished by six months to two years of imprisonment and/or a fine of XAF100,000–500,000. Any marketer that fails to honour a recipient’s request to end all telemarketing communications through automated systems is punishable in the same manner.

With text messaging, advertisers are required to inform the public of the prices and general and specific conditions of their service offerings. this information must clearly specify the content and scope of the offer and its details, in particular technical, price and contractual.

Each modification made to the initial conditions of the offer must be made known to the public using means and media identical to those used when it was launched.

The information provided to the customers should include:

  • the exact description of the proposed offer;
  • the tariffs of the offer, all taxes included, in this case the main tariff of the offer when the latter includes several tariff components;
  • the minimum commitment period(s) related to the offer; and
  • the conditions of access to the offer including the customer equipment necessary to access it.

The advertiser must ensure:

  • the accuracy of the information relating to the offer;
  • the precision of the duration of availability of the offer in terms of quantity and price;
  • the absence of any mention of anything likely to mislead the consumer and/or any mention of anything unrelated to the service or the service offered;
  • the exact identification of the origin of the advertising message; and
  • the customer is offered the possibility to refuse to receive the message by message.

Sanctions take the form of imprisonment for at least six months, at most two years, and a fine of XAF100,000–500,000, or only one of these two penalties.

Although Congo recently adopted Law 29-2019 on data protection on 10 October 2019, and Law 37-2019 in December 2019, these laws pertain to the collection, retention and deletion of personal information and general commercial practices, and are silent as to the use of consumer data for targeted or interest-based advertising. As such, there are no particular rules regarding direct and personalised targeting. However, once put into law on this particular issue, the guiding principles are likely to be the same as in other jurisdictions, with a focus on consent before personal information such as prior consumption habits is used, as well as the ability to opt in/out once the consumer is targeted.

The Law 29-2019 of October 2019 defines personal information as “Any information relating to an identified natural person or identifiable directly or indirectly, by reference to an identification number or to one or more elements specific to their physical, physiological, genetic, psychological, cultural, social or economic identity.”

The law however does not define “children” or “kids” and instead defines a minor as a consumer under the age of 16. In fact, in Congo, a minor may alone consent to the processing of personal data with regard to the services offered by the company of information from the age of 16 years.

When the minor is under 16 years old, processing is only lawful if consent is given jointly by the minor concerned and the parents or the holders of parental authority with regard to this minor. The data controller must write in terms clear and simple, easily understood by the minor, all information and communications relating to the processing which concerns them.

In general, whoever carries out or causes to be carried out processing of personal data concerning a person without consent of that person, when this treatment responds to prospecting purposes, particularly commercial, or when the refusal to consent is based on legitimate grounds, is punished by imprisonment for at least six months, at most two years, and/or a fine of XAF100,000–500,000.

With the exception of it being forbidden to use children and adolescents in advertising and marketing aiming to exploit their inexperience and enticing them to dangerous practices that would cause harm to them, there are no special rules that apply to marketing relating to kids and/or to the collection or use of personal information from kids yet in Congo. With the rapidly developing trend of the law in this area, it is expected that such a deficit will be quickly resolved.

The participation in sweepstakes in Congo cannot be subject to the purchase of goods or the use of a service.

Competitions or promotional games must be clearly identifiable as such and their conditions of participation include, where applicable, that the authorisation number of the service provider must be easily accessible and presented in a precise and unambiguous manner.

The COGELO SA, Congolaise de Gestion de Loterie (Congo Lottery Management), is a company whose commercial activity consists mainly of organising bets on horse racing and games of chance throughout the national territory. Its mission is to collect part of the national savings to guide it towards economic and sociocultural objectives. The COGELO is under the supervision of the Ministry of Finance, Budget and Public Portfolio. It is administered by a board of directors and managed by an executive management. Because of recent events in the year 2020, the COGELO is undergoing an internal restructuring. There is currently no available information as to any required registration process.

There are no known laws or regulations that apply to loyalty programmes.

In-Store Price Reductions

In the Republic of Congo, all price reduction must indicate:

  • the goods and services or the category of goods and services concerned;
  • the conditions for the price reduction; and
  • the time period of the reduced price.

The new price must be displayed next to the former one with a strikethrough, or with a percentage reduction label. In addition, any price reduction announcement made to the consumer must refer to the price previously practised in the usual manner for identical goods or services and in the same establishment. With the exception of the price of products liable to deteriorate rapidly, the reference price is that practised for a continuous period of at least one month before the date from which the reduced price is applicable.

As to free goods or services, it is prohibited to describe goods or services as free if the consumer has to pay anything other than the cost associated with obtaining the goods or using the service.

Online Reduction/Promotions

Promotional offers, such as price reduction announcements, joint offers or any other gift, as well as contests or promotional games, sent by electronic mail, must be clearly identifiable as such and the conditions for benefiting from them must be easily accessible and presented in a precise and unequivocal manner in the subject of the letter upon receipt by the recipient, or in the event of technical impossibility, in the body of the message.

In Congo, any provider of goods or services with a renewal basis must have a written contract with a set end date defining specifically the terms of the agreement. This includes the service or goods to be provided, the frequency of delivery of the goods or services, and the terms of conditions for cancelling or terminating the agreement.

Consumers benefit, however, from the right to withdraw their consent to the contract within 14 days without cause and free of charge other than communication costs. The provider must then refund all received payments, including in some cases shipping costs, within a reasonable time of 14 days from receiving the consumer’s notice of consent withdrawal.

Withdrawal of consent is not available in cases of contracts involving:

  • goods and services with fluctuating prices beyond the provider’s control;
  • personalised goods under a consumer’s direct specifications;
  • perishable goods;
  • sealed goods that have been opened;
  • the sale of alcoholic beverages the price of which was agreed at the time of sale, which cannot be shipped within 30 days, and the price of which fluctuates beyond the provider’s control;
  • newspapers, periodicals or magazines (except for subscription contract to such publications);
  • any contract concluded at a public auction; and
  • the use of any software provided without physical support if the contract began with the user’s consent and understanding that they would lose withdrawal rights.

In renewing contracts, the provider must inform the consumer in writing of the cancellation or termination of the contract within a month, or the fact that the consumer can cancel a month before the set expiration date. The automatic renewal provisions must be explicitly laid out for the consumer to be put on notice of the renewal character of the contract.

Cabinet Gomes

Immeuble Clinique Les Manguiers
23, Av. Denis Loemba
B.P. 542 – Pointe-Noire
République du Congo

+242 05 550 86 95

+33 1 34 29 54 87

louisgomes@avocatsgomes.com www.cabinet.gomes.cg
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Law and Practice

Authors



Cabinet Gomes is a leading multidisciplinary law firm established in Pointe-Noire and Brazzaville by a secondary office. It offers assistance and legal solutions adapted to the needs of the main international companies and national authorities operating in the Republic of Congo. With a team of five lawyers, the firm intervenes, among others, regularly in company law; taxation; oil and gas; mining; litigation and arbitration; labour law; banking, financial and stock market law; mergers and acquisitions; environmental law; real estate law; civil law and contracts; administrative law; customs law; project finance and PPP; energy law; negotiations; and lobbying.

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