The primary laws and regulations that govern advertising practices in Portugal are the following.
Advertising practices are also regulated by industry-specific regulations concerning certain types of products such as:
Moreover, the Advertising Self-Regulatory Body (ARP) has published a “Code of Conduct on Advertising and other forms of Commercial Communication”, which is based on the Code of Fair Practices in Advertising by the International Chamber of Commerce. This Code of Conduct must be complied with by its member advertisers.
Under the terms of Regulatory Decree No 38/2012, the Directorate-General for Consumer Affairs (in Portuguese “Direção-Geral do Consumidor”) is responsible for monitoring and supervising commercial and institutional advertising, investigating and deciding on the corresponding administrative offence proceedings and imposing fines and ancillary sanctions. This competence is carried out by the Advertising Division of the Directorate-General for Consumer Affairs.
Additionally, when advertising within the scope of their competencies, the following regulatory authorities have the power to supervise compliance with legal provisions, investigate the respective administrative offence proceedings and apply the corresponding fines and ancillary sanctions.
The advertiser, the professional, the advertising agency or any other entity that carries out the advertising activity, the owner of the advertising medium or the respective concessionaire, as well as any other party involved in issuing the advertising message may be held liable for deceptive advertising.
For this purpose, the following should be considered.
Advertising is defined in the Advertising Code as any form of communication made by entities of a public or private nature, within the scope of a commercial, industrial, craft or liberal activity, with the direct or indirect aim of:
Advertising is also considered to be any form of communication by the Public Administration that has the direct or indirect aim of promoting the supply of goods or services.
The installation of an advertising support/device with the inscription of advertising messages of a commercial nature on goods or spaces assigned to the public domain, or visible from them, is subject to prior authorisation from the respective city council (Law 97/88, as amended by Decree-Law 48/2011).
If the advertising in question uses musical recordings (recorded music, music videos and/or karaoke), a licence must be requested from Audiogest (Collective Management Entity for the Rights of Phonographic Producers).
In addition, pre-approval may be required depending on the subject of the advertising in question, as is the case with financial products (necessity of notifying the Bank of Portugal) and medicines (necessity of prior authorisation from the Infarmed).
The Advertising Self-Regulatory Body (ARP) has a Pre-Clearance process, which is a voluntary system that makes the dissemination of advertising conditional on a prior analysis attesting to its ethical and legal compliance.
According to the Advertising Code, the legal provisions on copyright apply to the creation of advertising, and the economic rights over the advertising creation are presumed to have been assigned exclusively to its intellectual creator, unless otherwise agreed.
Moreover, the Advertising Code provides that advertising which uses the image or words of a person without their authorisation is prohibited.
The general rules of civil law, intellectual property law, and data protection law are applicable to the use of intellectual property or an individual’s name, picture, voice, or likeness in advertising. In this regard, a person’s image cannot be exposed, reproduced, or launched into commerce without that person’s prior consent. Any commercialisation that affects a person’s honour or reputation, without their consent, is prohibited.
According to the ARP’s Code of Conduct, a commercial communication should not, unless prior authorisation has been obtained, describe or refer to the personal goods of any person in order to insinuate that that person has made some kind of recommendation as to the use of the product that is being advertised. It is also determined that advertising must not, under any circumstances, unduly take advantage of the reputation linked to the name, trade marks, or any other intellectual property element relating to another entity, person, or institution, nor take advantage of the reputation obtained by other marketing campaigns, without having obtained their prior authorisation.
The self-regulatory authority that governs advertising practices in Portugal is the ARP, which is a system created by the industry itself and is voluntarily adhered to by its professionals, whether they are advertisers, agencies, or media.
The core competence of the ARP is to verify that advertising complies with the Advertising Code and the Code of Conduct issued by the ARP.
The ARP has a dispute resolution system, through which it receives complaints from consumers or legal entities (public or private entities), whenever they consider that a particular advertisement is unlawful and/or censored by the Advertising Self-Regulation Code of Conduct or by current legislation.
The ARP also has a Copy Advice system, under which it provides confidential legal advice on an advertisement before it is disseminated. Similarly, the ARP has a Pre-Clearance process, which is a voluntary system that makes the dissemination of advertising conditional on a prior analysis attesting to its ethical and legal compliance.
Furthermore, the ARP has monitoring and mediation functions.
A consumer may bring a claim before the Directorate-General for Consumer Affairs (which is the responsible entity for the supervision of advertising) and also before the ARP.
Consumers are always entitled to file a legal action in case the advertisement violates or harms consumer rights.
In addition, any person, including competitors who have a legitimate interest in combating misleading advertising or in opposing advertisements that consist of prohibited unfair commercial practices, may request the intervention of the Directorate-General for Consumer Affairs or may bring an injunction action to prevent, correct, or stop such practices, under the terms of the Consumer Protection Law.
In this regard, a consumer who has suffered damage as a result of an advert that is deemed an unfair commercial practice is entitled to compensation under the general terms.
Moreover, the Advertising Code provides that advertisers, professionals, advertising agencies and any other entities that pursue advertising activities, as well as the owners of the advertising media used or the respective concessionaires, are jointly and severally liable, in general terms, for damage caused to third parties as a result of the dissemination of illegal advertising messages.
One of the most important regulatory trends concerns the manner in which discounted or promotional prices are presented to consumers.
Other case actions brought in the past 12 months regarding deceptive advertising include the following.
There has been a lot of attention recently on the rules of advertising products that contain high energy, salt, sugar, saturated fatty acids, and processed fatty acids.
The deliberations of the ARP Ethics Jury, which acts as an alternative means of resolving disputes, have been of great importance to the Portuguese courts, functioning as case law.
Advertising is governed by the principles of lawfulness, identifiability, truthfulness, and respect for consumer rights.
For instance, the use of subliminal images or other dissimulating means that exploit the possibility of transmitting advertising without the recipients realising the advertising nature of the message is prohibited.
The Advertising Code provides that all advertising that is misleading is prohibited under the terms of the Unfair Commercial Practices Regime. In turn, this regime provides that a commercial practice is misleading if it contains false information or if, even if it is factually correct, for any reason, including its general presentation, it misleads or is likely to mislead the consumer in relation to one or more elements and, in both cases, leads or is likely to lead the consumer to take a transactional decision that he would not have taken otherwise. Specifically, and by way of example, the following practices are considered misleading.
According to the Advertising Code, advertising must respect the truth and not distort the facts.
In particular, claims about the origin, nature, composition, properties, and conditions of purchase of the goods or services advertised must be accurate and capable of being proven at all times before the competent authorities.
If there is a suspicion that an advertisement consists of an unfair commercial practice, the Directorate-General for Consumer Affairs may require the advertiser to provide proof of the material accuracy of the factual data contained in the advertisement.
Additionally, according to the ARP’s Code of Conduct, descriptions, claims, or illustrations relating to verifiable facts in an advertisement must be capable of being proven.
Objective claims regarding the product or service that is being advertised always require substantiation, in particular regarding the origin, nature, composition, properties, and conditions of purchase of the goods or services advertised.
However, regarding subjective statements, it may be admissible not to have substantiation.
The above standards are applicable to the use of product demonstrations in advertising. Additionally, according to the Unfair Commercial Practices Regime, an insufficient demonstration of a product may be considered misleading and subject to monetary fines.
The ARP’s Code of Conduct provides that in demonstrating the performance and use of a product, advertising must not:
The Advertising Code provides that testimonial advertising must include personalised, genuine, and verifiable testimonies related to the experience of the deponent or whoever they represent. Depersonalised testimony is allowed, as long as it is not attributed to a particularly qualified witness, namely due to the use of uniforms or clothing characteristic of a particular profession.
In television advertising, endorsements must be identifiable as such, at the beginning, restart, and at the end of any programme.
Moreover, according to the ARP’s Code of Conduct, advertising must not represent or refer to a person, regardless of whether they are carrying out public or private activities, without their prior authorisation. It is also stipulated that testimonials or qualified endorsements must relate to the experience of the person providing them and, when they become obsolete or misleading, particularly due to the passage of time, they must not be used.
According to the Advertising Code, advertising must be unequivocally identified as such, whatever the means of dissemination used. In this respect, any disclaimers in advertising must be truthful and lawful, and must not mislead consumers. Accordingly, advertising which, by its form, object, or purpose, offends the fundamental values, principles, and institutions enshrined in the Constitution is prohibited.
In addition, advertising that encourages behaviour harmful to the health and safety of the consumer is forbidden, namely due to inadequate information about the dangerous nature of the product or the particular susceptibility to accidents as a result of its use.
There are no special laws or regulations that address stereotyping in advertising. Notwithstanding, all advertising containing any discrimination in relation to race, language, territory of origin, religion, or gender is prohibited.
The ARP’s Code of Conduct provides that advertising must respect the dignity of the human person and must not incite or convey any form of discrimination, whether based on race, nationality, religious origin, gender, age, physical disability, or sexual orientation.
In addition, Law No 27/2021 (“Portuguese Charter of Human Rights in the Digital Age”) states that everyone has the right to ensure that content transmitted and received in a digital environment is not subject to discrimination, restriction, or interference in relation to the sender, the recipient, the type or content of the information, the device or applications used, or, in general, people’s legitimate choices.
In general, and in accordance with the Advertising Code, advertising that encourages behaviour harmful to the protection of the environment is prohibited, as well as advertising for vehicles that contains situations or suggestions for using the vehicle that disturb the environment.
The Directorate-General for Consumer Affairs, together with the ARP, have issued a guide on environmental claims in advertising, which establishes some indications regarding the presentation of environmental claims, namely:
The use of environmental claims such as environmentally friendly; ecological; sustainable; biodegradable; and zero carbon, without an accessible, detailed, understandable, objective explanation and supported by scientific evidence of the benefits claimed is prohibited.
The ARP Code of Conduct also includes a specific chapter dedicated to environmental claims in advertisements.
The Unfair Commercial Practices regime prohibits aggressive commercial practices. In this regard, a commercial practice is aggressive if, by reason of harassment, coercion, or undue influence, it significantly limits or is likely to significantly limit the consumer’s freedom of choice or behaviour in relation to a good or service and therefore causes or is likely to cause the consumer to take a transactional decision that he would not have taken otherwise.
The following commercial practices are considered aggressive under any circumstances.
In accordance with the Advertising Code, advertising aimed specifically at children must always take into account their psychological vulnerability, and in particular refrain from:
Advertising of alcoholic beverages, gambling and betting, tobacco, or any kind of pornographic material in educational establishments, as well as in any publications, programmes, or activities especially aimed at children, is prohibited.
There are also a number of restrictions on advertising products that contain a high level of energy, salt, sugar, saturated fatty acids, and processed fatty acids. In this regard, the ARP has issued a Code of Self-Regulation on the advertising of food and drink aimed at children.
The ARP Code of Conduct establishes various provisions applicable to restrictions on advertising aimed at children, including that:
According to the Advertising Code, advertising delivered to the recipient’s address, by post or any other means, must clearly and precisely contain the name, address, and other information necessary to identify the advertiser.
The ARP’s Code of Conduct provides that the identity of the advertiser/sponsor or the brand must be evident and the advertisement must, where appropriate, mention the means by which the consumer can contact them without any difficulty.
The ARP’s Code of Conduct also includes a chapter dedicated to sponsorship, stipulating namely that particular care must be taken to ensure that there is no possibility of confusion between, on the one hand, sponsoring a particular event or activity and, on the other, sponsoring the media broadcast of that event, particularly when several sponsorships are involved and without prejudice to situations in which the same entity sponsors both.
In television advertising, sponsored programmes must be clearly identified as such by the name, logo, or any other distinctive sign of the sponsor of its products or services. Sponsored programmes must be identified at the beginning, at the restart, and at the end of the programme. In accordance with the Television Law, sponsored programmes, as well as the identification of their sponsorship, may not directly encourage the purchase or rental of products or services of the sponsor or third parties, namely through specific promotional references to such products or services.
According to the Radio Law, sponsored programme slots must include an express mention of this fact at the beginning.
The Advertising Code lays down some specifications for certain claims.
In addition, advertising on the following subjects is limited to certain conditions:
The Advertising Code lays out specific rules regarding comparative advertising claims. Accordingly, comparative advertising is all advertising that identifies, explicitly or implicitly, a competitor or the goods or services offered by such competitor.
Furthermore, comparative advertising is only licit when the following conditions are met.
Additionally, whenever the comparison refers to a special offer, it must clearly and unequivocally indicate its term or, if applicable, that this special offer depends on the availability of the products or services.
Finally, the burden of proof regarding the veracity of the comparative advertising belongs to the advertiser.
The law is not clear on whether advertisers are permitted to use the name of a competitor, a competitor’s trade mark, or a competitor’s packaging in comparative advertising. This issue must be assessed in a case-by-case analysis. This is due to points 4, 5, and 7 in 3.1 Specific Rules or Restrictions. Although the law does not explicitly forbid using a competitor’s name or trade mark, the provisions can open the road to an interpretation of the Supervisory Authority in the sense that the advertiser, by using the competitor’s name or trade mark in a certain situation, may indeed be discrediting another trade mark or exploiting the reputation of a competitor in advertising and, as such, consider that these advertisers are infringing the Law.
In the authors’ understanding, it is not so much about packaging, as it is a broader concept and the average consumer will not as easily identify the product that the advertiser is comparing with.
An advertiser can challenge a claim made by a competitor in the general terms of the Advertising Code. If a claim is contested and the advertiser is unable to prove the claim made, it will be civilly liable for all damages caused.
Additionally, in our jurisdiction, comparative advertising that is not licit within the terms laid out above is also deemed an unfair commercial practice under Decree Law No 57/2008.
For the challenge of a claim, there are essentially two methods.
Additionally, there is a third alternative for several advertisers in this jurisdiction, which is submitting a claim with the Advertising Self-Regulatory body.
There are no rules specially directed to regulate ambush marketing. Nonetheless, in the general terms of the Advertising Code and the Unfair Commercial Practices Regime, ambush marketing is accounted for with sanctions and possibility of civil liability towards the infringing party.
Particularly, in the Portuguese jurisdiction, ambush marketing can be deemed a specific unfair commercial practice, as well as a deceiving commercial practice. The Unfair Commercial Practices Regime predicts the following.
The Supervisory Authority is likely to use these articles as the base for ambush marketing situations and deem that said conduct falls under these two articles. The practice of these infractions can trigger the application of fines ranging from EUR1,700 to EUR24,000.
The general rules and principles on advertising are applicable to advertising in online and social media.
In this regard, the ARP has published a Guide of good practices for digital marketing communications and online behavioural advertising.
Moreover, Law No 27/2021 (“Portuguese Charter of Human Rights in the Digital Age”) provides that when using digital platforms, everyone has the right to:
When advertising online or via social media, other provisions of general national law must also be taken into account, such as civil, criminal, copyright, and personal data protection laws.
According to the E-Commerce Law, intermediary network service providers are not subject to a general obligation to monitor the information they transmit or store or to investigate possible offences committed within their scope.
Intermediary providers of network content association services that allow access to illegal content are liable, under common terms, for the information they store if they become aware of activity or information that is clearly illegal and do not immediately remove or disable access to that information.
On the other hand, the intermediary provider of network communication transmission services who has no intervention in the content of the messages transmitted or in the selection of these or the recipients and respects the conditions of access to information is exempt from all responsibility for temporary and automatic storage.
The Advertising Code stipulates that the advertiser, the professional, the advertising agency or any other entity that carries out the advertising activity, the holder of the advertising medium or the respective concessionaire, as well as any other party involved in the dissemination of the advertising message, are punishable as agents of the administrative offences provided for in the Advertising Code.
The general rules on advertising are applicable to online disclosures. In particular, advertising in social media must always be identified as such, in compliance with the principle of identifiability.
In addition, according to the E-Commerce Law, in advertising communications provided by electronic means, the following must be clearly identified so as to be easily understood by a common recipient.
There are no special rules in Portugal directly applicable to the use of social media platforms.
In Portugal, there are no special rules directly applicable to “native advertising”. The general rules apply.
In influencer campaigns, all the rules already listed must be respected, in particular those provided for in the Advertising Code.
The Directorate-General for Consumer Affairs has published a guide for influencers and advertisers on commercial communication in the digital environment. This guide provides a series of suggestions for complying with the applicable legislation, in particular:
Portuguese law does not specify who is responsible for the content published by influencers (whether the influencers themselves or the advertiser).
According to Decree-Law No 7/2004 (“E-Commerce Law”), the intermediary provider of a server storage service shall only be liable for the information stored, under the common rules of civil liability, where it has knowledge of any clearly illegal activity or has information of such an activity and does not act expeditiously to remove or to disable access to such information.
In this regard, the Advertising Code stipulates that the advertiser, the professional, the advertising agency or any other entity that carries out the advertising activity, the holder of the advertising medium or the respective concessionaire, as well as any other party involved in the dissemination of the advertising message, are punishable as agents of the administrative offences provided for in the Advertising Code.
Therefore, the regulatory authority may consider that, depending on the situation, both the influencer and the advertiser are liable for the advertising content published.
The Unfair Commercial Practices Regime provides for a number of rules applicable to consumer reviews. In particular, it is considered a deceptive practice to:
Decree-Law 24/2014 also provides for some rules applicable to the due diligence measures that must be ensured by the online marketplace provider that provides access to consumer reviews.
Consumer review systems are the responsibility of the respective online marketplace provider that provides such a system. Therefore, in accordance with Decree-Law 24/2014, the online marketplace provider must adopt the appropriate due diligence measures, namely:
Online market providers must provide mechanisms for reporting false or abusive reviews and allow the supplier of the goods, or services provider, to respond to the review submitted.
Law No 41/2004 (“E-Privacy Law”) provides for the rules applicable to the sending of marketing communications through the use of automated calling and communication systems that do not depend on human intervention (automatic calling machines), fax machines or email, including SMS, EMS, MMS, and other similar types of applications. Accordingly, there are three different applicable situations.
If these rules are infringed, it could lead to a minimum fine of EUR1,500 and a maximum fine of EUR25,000 when committed by natural persons, and a minimum fine of EUR5,000 and a maximum fine of EUR5 million when committed by legal persons.
Regarding the rules applicable to telemarketing, the ARP’s Code of Conduct provides for the following.
Moreover, Law No 6/99 (“Advertising by telephone and fax regime”) provides that telephone advertising, using automatic systems with pre-recorded voice messages, is prohibited, unless the recipient authorises it before the communication is established.
The rules indicated in 6.1 Email Marketing are applicable to text messaging.
According to Data Protection Law, the consumer must be informed about the existence of automated decisions, including profiling and targeting, and, at least in such cases, useful information must be provided regarding the underlying logic as well as the significance and expected consequences of such processing for the data subject.
The ARP has published a Guide of good practices for digital marketing communications and online behavioural advertising.
As provided for in Law No 58/2019 (“Personal Data Protection Law”), with regard to the direct provision of information society services, the personal data of children can only be processed on the basis of consent when they have reached the age of 13. If the children are under the age of 13, processing is only lawful if consent is given by their legal representatives, preferably by means of secure authentication.
Failure to comply may result in a fine of up to EUR10 million or, in the case of an undertaking, up to 2% of its annual worldwide turnover for the previous financial year, whichever is higher.
The rules on data protection (namely the ones provided for in the GDPR) must be complied with.
Sweepstakes and contests are considered, within the meaning of Decree-Law No 422/89 (“Gambling Law”), to be related forms of games of chance. The operation of related forms of games of chance is subject to authorisation.
In addition, the operation of any related forms of games of chance by profit-driven entities is not permitted, except for contests of knowledge, quizzes, or others organised by newspapers, magazines, radio or television stations, and advertising contests promoting goods or services.
Related forms of games of chance may not develop themes that are characteristic of games of chance, namely poker, fruit, bells, roulette, dice, bingo, lottery of numbers or instant lottery, totobola and totoloto, nor may they replace the prizes awarded with money or tokens.
The Gambling Law defines games of chance as those whose outcome is contingent because it is based exclusively or fundamentally on luck. These include the following games.
The Law also foresees the concept of related forms of games of chance, which consist of operations offered to the public in which the hope of winning lies jointly in the luck and skill of the player, or in luck alone, and which award items with a predetermined economic value as prizes at the outset. This includes, in particular, prize raffles, tombola, sweepstakes, advertising competitions, knowledge competitions, and contests.
Games of chance – whose outcome is contingent because it is based exclusively or fundamentally on luck – may only be operated and practised in casinos in permanent or temporary gaming zones created by decree-law.
Responsibility for games of chance lies with the member of the government responsible for the tourism sector. It is the responsibility of the member of the government in charge to authorise the operation of new types of games of chance, at the request of the concessionaires and following an opinion from the Inspectorate-General for Gaming.
The right to operate games of chance is reserved by the state. The operation of games of chance may be granted by concession to private legal persons, incorporated as public limited companies or equivalent, with their registered office in a member state of the EU, or in a state signatory to the Agreement on the European Economic Area (EEA) which is bound by administrative co-operation in the field of taxation and the fight against fraud and money laundering, provided that, in the case of foreign companies, they have a branch in Portugal.
The concession to operate games of chance in casinos in gaming zones is awarded by public tender or restricted tender with prior qualification.
The operation of related forms of games of chance (which may include contests of skill if the hope of winning lies jointly in the luck and skill of the player) is subject to authorisation by:
Regarding free or reduced-price offers, the following laws must be considered.
The ARP’s Code of Conduct provides that the term “free”, used in situations such as “free gift” or “free offer”, can only be used:
For automatic renewal/continuous service offers under which a marketer can continue to ship and bill for products and services on a recurring basis until the consumer cancels, all consumer laws must be considered, namely the following.
In Portugal there are no specific national rules related to the use of artificial intelligence (AI) in connection with the development of advertising content.
Law No 27/2021 (“Portuguese Charter on Human Rights in the Digital Age”) states that the use of AI must be guided by respect for fundamental rights, ensuring a fair balance between the principles of explanation, security, transparency, and accountability, taking into account the circumstances of each specific case and establishing processes designed to avoid any prejudice or discrimination. In addition, decisions with a significant impact on the sphere of recipients that are taken using algorithms must be communicated to those concerned, be subject to appeal, and be auditable.
In Portugal there are no specific national rules related to making claims that a product is developed through the use of AI, is powered by AI, or has AI-related capabilities. Notwithstanding, the general terms of advertising law apply in these situations.
There are no special rules or guidance regarding the use of chatbots. General terms of law apply.
Considering that virtual-asset service provision is regulated in our jurisdiction, such advertising falls under the scope of application of Law No 78/2021 (“Regime for the prevention and combat against non-authorised financial activity and consumer protection”), which provides for special rules regarding advertising.
According to Article 3 of such Law, advertising directed to the commercialisation of products, goods, or the provision of financial services can only be performed by authorised entities for such activity or a person acting on their behalf within the terms of the Law.
Otherwise, the general terms of advertising law apply.
In Portugal there are no specific national rules that apply to advertising within the metaverse. Therefore, the general terms of advertising law apply.
The Advertising Code sets a specific set of rules for several regulated products, such as alcoholic beverages, tobacco, treatment, and medicine in general, as well as HFSS products (products containing high energy, salt, sugar, saturated fatty acids, and processed fatty acids), gambling, education, and automobiles. In addition, laws specific to each sector establish rules applicable to the advertising of such products.
Concerning Alcoholic Beverages
Advertising may not:
Concerning Tobacco
These restrictions include vaping and heated tobacco unless the products do not contain any nicotine or tobacco.
Concerning HFSS Products
Treatment and Medicine
Gambling
Education
Concerning Automobiles
There are some limitations regarding the timing of advertising. Refer to 10.1 Regulated Products.
See 10.1 Regulated Products.
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In the past year, Portugal has not seen any major updates from the legislative point of view directly related to advertising and marketing. Although new issues have been emerging with digital advertising and influencer marketing, as of now, these players are required to follow the applicable general law.
The relevant laws for advertising and marketing in the Portuguese jurisdiction are:
Considering the constant improvement and development of the digital platforms available for EU citizens, it is safe to say that in Portugal, digital advertising and marketing is currently the main form of promoting products. Authorities are now burdened with an additional environment to supervise advertising and marketing issues, which generates an increased effort for authorities with low resources.
Although changes in the law to cover the new digital economy reality are uncertain, it is expectable that changes will arise in the next few years. The most relevant and emerging issues in advertising and marketing in this jurisdiction are as follows.
Influencer marketing
Influencer marketing is incredibly relevant for Portuguese advertising and marketing, as it is the new form of advertising for the younger audiences, via smartphones and tablets, especially on social networks such as Facebook, Instagram, and TikTok.
Given the impact that the content generated by influencers has on consumers’ purchasing decisions, influencer marketing continues to be one of the most effective tendencies and one that has seen the most demand.
In the past year, several new trends and products have been sold and advertised in these new platforms by influencers, such as travelling, clothing, protein powder, and gym supplies, but also general financial guidance, meditation guides, and even classes on how to improve marketing skills.
Due to the fact that these influencers (with brands as their partners) are liable for the advertising and marketing content they expose on the internet, they also become liable for the payment of any penalties that may arise from violating advertising law. Although the risk may be shared with the company that is using them to sell a particular product, it is certain that influencers have no guidelines on how to advertise products or post content regarding those products, except those provided by the relevant companies.
Last year, the Directorate-General for Consumer Affairs issued a Digital Guide for Influencers and Advertisers, which provides for guidelines on:
The Guide’s objective is in fact to provide these professionals with guidance on (i) how to make consumers understand that they are indeed watching advertising content, and (ii) the rules relating to the advertising of certain products which the consumer may be misled about or compelled to buy due to false information or information that is not entirely transparent and/or accurate.
As influencers are required to comply with the Advertising Code – in the absence of concrete and directly applicable legislation – complaints have already been lodged with the Directorate-General for Consumer Affairs against influencers: six complaints for advertising online casinos, which have been forwarded to the Gaming Regulation and Inspection Service; and two administrative offence cases that are also being investigated for failure to identify advertising content.
In view of the above, the Ministry of Economy has recently clarified that although this Digital Guide is up to date, it will be improved in the near future to cover other issues such as civil and ethical liability, contractual relations between influencers and advertising agencies, and compliance with tax obligations.
The market for digital influencers is growing in Portugal and is generating increasing attention from various organisations, including the Directorate-General for Consumer Affairs. At the same time, experts in influencer marketing have appealed for the regulation of the sector.
Scam shops and webpages imitating well-recognised brands
In Portugal, it is frequent for scammers to generate websites and digital shops that imitate the websites and pages of well-recognised brands, mainly in the sector of clothing, shoes and accessories. Since these websites are very accurate imitations, they usually mislead the consumer into ordering and purchasing products online that never arrive.
The most frequent tactic is to advertise a certain company or brand’s top selling or most famous products and apply a 40–50% price reduction for a limited amount of time. Since these websites and digital shops usually claim to be “outlet” stores of the company or brand, the consumers attribute a certain credibility to them.
Under Portuguese law, when content infringes intellectual property rights such as designs, or is unlawful (as is the case with these websites and pages), a complaint can be presented to take down said websites, which can nonetheless take up to 12 days to happen.
It seems that a possible solution for this problem would be to create a consumer-friendly manner of verifying the authenticity of the advertising and the websites, thus disrupting this emerging tendency in Portugal.
False price reductions in special events (such as “Black Friday”)
The “Black Friday” and similar events have been widely explored in Portugal for the past decade, especially in the technology sector. During the course of the past few years, there has been intense marketing and advertising for such events, triggering widely busy and high-in-sales events, with consumers filling stores to acquire goods that are generally expensive for Portuguese families at a large price reduction.
As a result of these events, there have been several news reports mentioning that price reductions on Black Friday are not actually true, since they result from a previous price increase (eg, two months before Black Friday, a product increases its price by EUR150 in a certain store. On Black Friday, the price decreases by EUR90). The Supervisory Authorities have been increasing their control and monitoring of these situations in order to reduce consumer deception and the belief that the consumer is buying a discounted product when, in fact, it is not.
As a matter of fact, Portuguese law is very limitative of these practices and the legislator has endeavoured to combat these issues with the provision of deadlines for sales, promotions, and liquidations of products by companies. According to Decree-Law No 70/2007 (regulating commercial practices with price reductions for retail in commercial establishments), a good that is either on “sale” or “promotion” requires a price reduction in relation to the lowest price of the good that has been in force for more than 30 consecutive days.
A good that is on “sale” is a good that has a price reduction with the goal to promote the accelerated disposal of stock. On the other hand, a good that is on “promotion” is a good that is either (i) at a current lower price or with more advantageous conditions than the ones used in previous full-price periods, in the same establishment, or (ii) if the product has never been commercialised, at a lower price when compared to the recommended price or with more advantageous conditions than the ones after the period of promotion. Also, promotions are differentiated from sales in this Decree-Law by the fact that promotions have the clear objective of promoting a product in order to boost the sale of certain products or launch a product not previously commercialised.
It is expected that in the next few years, transparency regarding these promotional periods by merchants will increase, since the Supervisory Authorities have been very active in pursuing irregularities in these events and have been applying fines for administrative offences. For example, in 2019, 57 administrative offence proceedings were conducted by the Supervisory Authority for Economic and Food Safety (ASAE) as a result of Black Friday.
Ethics Jury deliberations
Although there are Supervisory Authorities for advertising and marketing in Portugal – which are the ASAE and the Directorate-General for Consumer Affairs (DGC) – the majority of advertisers have adhered to an Advertising Self-Regulatory entity (ARP), which is a voluntary entity that jointly determines rules and guidelines for advertisers and interprets current legislation on advertising. This entity also comprises an “Ethics Jury”, which is a jury used to settle advertising claims amongst advertisers (in situations of, for example, comparative advertising and misleading advertising).
This Jury has been working for many years as an alternative dispute resolution method for companies which would have to resort to the courts in order to have any damages caused to them repaired, despite the fact that the Supervisory Authorities would always be able to impose fines to the infringing entity. Recently, the Ethics Jury has been deliberating on several comparative advertising issues, deceptive advertising, and issuing decisions that are solid and reasonable for advertisers.
Additionally, and considering that the composition of the Jury is of specialists, the decisions can be used as solid arguments whenever there is litigation on said topics, helping to develop more case law regarding advertising in the Portuguese jurisdiction, since there is not a large amount of case law on advertising in Portugal.
This year, in contrast to previous years, the Ethics Jury has not been very active, having only published two decisions on the violation of rules applicable to the advertising of medicines.
Ius Omnibus
Related to the topic of case law, the Ius Omnibus association continues to assume relevance.
Ius Omnibus is a non-profit consumer defence association established under Portuguese law in 2020. It was born with the aim of protecting and defending the interests of consumers who are citizens of EU member states or third countries resident in the EU in a transparent and swift manner, with the aim of creating a new paradigm of legality and access to justice for all.
Ius Omnibus acts mainly in defence of these rights through the promotion of legal actions aimed at obtaining the restoration of legality and/or due compensation for consumers for damages caused by unlawful conduct of companies.
By way of example, in April 2023, Ius Omnibus filed two class actions aimed at protecting users, resident in Portugal, of a social media platform (one action aimed at children under 13 and the other for users aged at least 13) against the platform’s misleading commercial practices, and at restoring legality. On another topic, Ius Omnibus filed a class action lawsuit aimed at defending Portuguese consumers harmed by the illegal practices of a cosmetics company. At issue was the marketing, for several years, of cosmetic products advertising that they contained probiotics, which it claims are responsible for various beneficial effects on the skin. Ius Omnibus requested independent laboratory tests which concluded that these products did not contain probiotics. These actions are still ongoing.
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