Advertising and Marketing 2024 Comparisons

The primary laws and regulations that govern advertising practices in Portugal are the following.

• Decree-Law No 330/90 (“Advertising Code”).
• Decree-Law No 57/2008 (“Unfair Commercial Practices Regime”).
• Law No 24/96 (“Consumer Protection Law”).
• Law No 41/2004 (“E-Privacy Law”).
• Law No 6/99 (“Advertising by telephone and fax regime”).
• Decree-Law No 175/99 (“Advertising Regime for Audiotext and Value-Added Services through Text Message”).
• Decree-Law No 110/2018 (“Industrial Property Code”).
• Decree-Law No 63/85 (“Copyright and Related Rights Code”).
• Law No 27/2007 (“Television Law”).
• Law No 54/2010 (“Radio Law”).

Advertising practices are also regulated by industry-specific regulations concerning certain types of products such as:

• medical devices;
• medicines;
• cosmetics;
• financial products;
• gambling; and
• tobacco.

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.

There are also rules specifically regulating political advertising.

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 Directorate-General for Primary Health Care.
• The Directorate-General for Pharmaceutical Affairs.
• Infarmed (National Authority for Medicines and Health Products, IP).
• The Gaming Regulation and Inspection Service and the gaming commission of the Instituto do Turismo de Portugal, IP.
• Independent administrative entities regulating the media.

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 activity – the set of operations related to the dissemination of an advertising message to its recipients, as well as the legal and technical relationships that arise between advertisers, professionals, advertising agencies, and entities that operate advertising media or carry out these operations.
• Advertiser – the natural or legal person in whose interest the advertising is carried out.
• Advertising professional or agency – the natural person who carries out the advertising activity or the legal person whose exclusive object is to carry out the advertising activity.
• Advertising medium – the vehicle used to transmit the advertising message.

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:

• promoting, with a view to their commercialisation or sale, any goods or services; and
• promoting ideas, principles, initiatives, or institutions.

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 notice to or 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.

In 2024, the enforcement activity of the Directorate-General for Consumers’ Affairs focused mainly on environmental claims and influencer marketing, as well as advertising aimed at minors.

Of the 72 decisions the Directorate-General for Consumers’ Affairs had predicted to issue in 2024 as an ideal target (60 final decisions in infringement proceedings initiated by the Directorate-General for Consumers’ Affairs, added to 12 decisions to initiate investigation proceedings), only 25% have been issued.

Among the administrative offences already launched by the Directorate-General for Consumers, the most noteworthy have been the presentation of prices in large-scale food retailers (ie, supermarkets) and the issue of misleading advertising, also in the non-food sector. During the summer season, specifically during the summer vacation period, the Directorate-General for Consumer Affairs also carried out an inspection of advertising and prices presented in connection with the purchase of airline tickets, in which 367 advertising messages were analysed and five notices were issued, which are expected to lead to administrative offence proceedings against the five entities.

Parliamentary groups, in turn, have been focusing their attention on advertising directed at children, and especially in connection with foodstuffs. Just this September, the final text of a Bill introduced by PAN (People – Animals – Nature) at the beginning of the legislature, which called for a review of the regulations governing advertising of foodstuffs directed at children, has been approved by the Economy Committee, and is now awaiting approval in the general chamber.

In addition to the decisions listed in 1.9 Regulatory and Legal Trends, there were various circumstances throughout 2024 in which companies acting within the Portuguese market made use of controversies involving high command officials in the Portuguese government and/or culturally (religiously) relevant imagery to advertise their products.

The legitimacy and lawfulness of these particular advertising practices was much discussed. Indeed, while resort to government bodies and government officials, as well as to religious or cultural symbols, for the purpose of publicity and commercial communications, may not depreciate the persons or symbols invoked, “depreciating” is a significantly open concept. As such, both supporters and opponents were able to find arms to bear in the discussion.

Nonetheless, the campaigns referred to in this point have not yet been made the object of a publicly available proceeding. As such, the legal community is still awaiting a final judgment on the boundaries of licit advertising using institutional and/or religious symbols.

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 or she would not have taken otherwise. Specifically, and by way of example, the following practices are considered misleading.

• Any commercial promotion activity relating to a good or service, including comparative advertising, which creates confusion with any goods or services, trade marks, commercial designations, and other distinctive signs of a competitor.
• Providing search results in response to a consumer’s online search query without clearly disclosing the advertising payment or other payment made specifically to obtain a higher ranking of products in the search results.

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:

• minimise the degree of skill or underestimate the age generally required to be able to assemble or operate the product;
• exaggerate the actual dimensions, value, nature, duration of use, and performance of the product; or
• fail to properly inform about the need for additional purchases, such as accessories or individual parts of a collection or series, necessary to obtain the result demonstrated or described.

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 environmental claim must be true, accurate, and capable of being substantiated by scientific evidence;
• the environmental claim must be relevant – ie, it must concretely reflect the specific benefit for the environment;
• it must be clear and explicit about which environmental characteristic the claim refers to; and
• the environmental claim must be communicated through simple and accessible language, without exaggerating the environmental advantages or characteristics.

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 or she would not have taken otherwise.

The following commercial practices are considered aggressive under any circumstances.

• Making persistent and unsolicited requests by telephone, fax, e-mail, or any other means of distance communication, except in circumstances and to the extent that this is justified for the fulfilment of a contractual obligation.
• Including in an advertisement a direct exhortation to children to buy or to persuade their parents or other adults to buy the goods or services advertised.
• Conveying the false impression that the consumer has already won, will win or, by performing a certain act, will win a prize or other advantage when there is no prize or advantage or when performing acts to claim the prize or advantage involves the consumer paying a sum of money or incurring a cost.

In accordance with the Advertising Code, advertising aimed specifically at children must always take into account their psychological vulnerability, and in particular refrain from:

• directly inciting minors, by exploiting their inexperience or credulity, to purchase a particular good or service;
• directly encouraging minors to persuade their parents or third parties to buy the products or services in question;
• containing elements likely to endanger their physical or moral integrity, health, or safety, in particular through scenes of pornography or incitement to violence; and
• exploiting the special trust that minors place in their parents, guardians, or teachers.

Advertising of alcoholic beverages, gambling and betting, tobacco, or any kind of pornographic material in educational establishments and surrounding areas, 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:

• advertising must not contribute to making it difficult for children to distinguish between reality and fantasy in a way that is harmful to them; and
• advertising must not exploit the idea that possession or use of the product being promoted will give the child physical, psychological, or social advantages over any other child, or that deprivation of the product in question could have the opposite effect.

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.

• Claims concerning the origin, nature, composition, properties, and conditions of purchase of the goods or services advertised must be accurate and capable of being proved at all times before the competent authorities.
• The languages of other countries may only be used in advertising messages, even in conjunction with Portuguese, when foreigners are the exclusive or main recipients. Notwithstanding, the exceptional use of words or expressions in the languages of other countries is permitted when necessary to achieve the effect sought in the design of the message.
• In particular, advertising that disparages institutions, national or religious symbols, or historical figures; uses obscene language; and/or is aimed at trade union, political, or religious ideas, is prohibited.

In addition, advertising on the following subjects is limited to certain conditions:

• gambling and betting advertising;
• courses or other intellectual, cultural, or professional training or development activities;
• motor vehicles;
• cosmetic products;
• financial products;
• alcohol – Decree-Law No 50/2013 should also be considered for this purpose;
• tobacco – Law No 37/2007; and
• treatments and medicines – for this purpose, Decree-Law No 238/2015 (“Legal Framework for Health Advertising Practices”) and Decree-Law No 176/2006 (“Framework for Medicines for Human Use”) should be taken into account.

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.

• The advertising must not be misleading within the terms of the Law.
• It must compare goods or services that satisfy the same needs or have the same objectives.
• It must compare, in an objective manner, one or more essential characteristics, that are also pertinent, provable, and representative of such goods and services, amongst which price can be included.
• It does not generate confusion in the market amongst professionals, between the advertiser and a competitor or amongst trade marks, commercial designations, other distinctive signals, goods, or services of the advertiser or seller.
• It must not discredit or depreciate trade marks, commercial designations, other distinctive signals, goods, services, activities, or the situation of a competitor.
• It must refer, in all cases where there is a product with a designation of origin, to products with that same designation.
• It does not unduly exploit reputation of a trade mark, trade name, or other distinctive sign of a competitor or the designation of origin of competing products.
• It must not present a good or service as being an imitation or reproduction of a good or service which has a protected trade mark or commercial designation.

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 this 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.

• Presenting a claim with the Authority for Economic and Food Safety (ASAE), which is competent to appreciate unfair commercial practices issues and trigger the application of fines to the infringing advertiser, but not to trigger payment of civil liability indemnification.
• Filing a lawsuit for damages and civil liability in the terms of the Advertising Code and general Portuguese law.

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 prohibits the following.

• All commercial practices susceptible to distortion of behaviour if the professional could have reasonably foreseen that such behaviour is susceptible to having said influence.
• Any practice that generates confusion amongst consumers regarding any trade marks, distinctive signals, and positioning.

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:

• receive clear and simple information on the conditions of service provision when using platforms that enable information and communication flows;
• exercise on these platforms the rights guaranteed by the applicable legislation;
• have the protection of their profile guaranteed, including its recovery if necessary, as well as to obtain a copy of the personal data concerning them under the terms of the law; and
• submit complaints and resort to alternative means of conflict resolution under the terms of the law.

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.

• The advertising nature, as soon as the message is displayed on the terminal and in an ostentatious manner.
• The advertiser.
• Promotional offers, such as discounts, prizes or gifts, and promotional competitions or games, as well as the conditions to which they are subject.

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. Namely, according to the Advertising Code, advertising must be unequivocally identified as such, whatever the means of dissemination used.

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:

• Ensure that advertising is identified – identify the existing commercial relationship in the form of text, audio, photo, or video at the beginning of the publication and usage of the indication #AD or AD adapted to the platform in question.
• Whenever there is another type of benefit, it must be identified with the corresponding hashtag or designation – #SPONSORSHIP, #PARTNERSHIP, or #OFFER.
• Ensure that the statements influencers make are based on real experiences.

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:

• state that reviews of a product are submitted by consumers who have actually used or purchased it, without adopting reasonable and proportionate measures to verify that these reviews are published by such consumers; and
• submit false consumer reviews or recommendations or instruct a third natural or legal person to submit false consumer reviews or recommendations, or submit misrepresented consumer reviews or recommendations on social media in order to promote the products.

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:

• ensure verification of the prior existence of a commercial transaction carried out by that consumer, whenever the assessment is advertised as being based on the prior purchase of the product or service offered;
• clearly and unequivocally identifying the reviews made in exchange for some benefit, when it is or should be aware of this;
• ensure that reviews are published without delay and that their author can edit their content at any time; and
• ensure that all reviews, positive or negative, remain available for the same period of no less than six months.

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.

• Potential customers – the data subject should provide his/her express consent for the reception of direct marketing communications (“opt-in” rule).
• Existing customers – the controller that has already obtained the electronic contact details of the customer within the scope of the sale of a product or service, may send direct marketing communications aiming to promote its own or similar products, provided that the customer is given the possibility to oppose the reception of marketing communications (“opt-out” rule), at the time of the collection of the data, and at each communication in case the customer has not initially refused the processing of data for direct marketing communications.
• Legal entities – the E-Privacy Law allows the sending of marketing communications without prior consent, within certain requirements.

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.

• Silent calls, without voice communication, to check the presence of any interlocutor, are prohibited.
• Before ending the call, the telemarketer must ensure that the consumer is informed and aware of the nature of any agreement reached and any action that will be taken following the call.

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.

• Single- or double-banked games – baccarat point and banker, French banker, boule, cussec, banked écarté, French roulette, and American roulette with a zero.
• Single-banked games – black jack/21, chukluck, and thirty-forty.
• Double-banked games – limited-bank baccarat and craps.
• Banked game – keno.
• Non-banked games – baccarat chemin de fer, open-bank baccarat, écarté, and bingo.
• Games on machines paying prizes directly in chips or coins.
• Games on machines which, while not directly paying out prizes in chips or coins, develop themes specific to games of chance or result in scores that depend exclusively or fundamentally on luck.

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:

• the mayor of the respective city council, when limited to the territorial area of the municipality; and
• the mayor of the municipality where the entity operating the related forms of games of chance and other forms of gambling is located or has its head office, when not limited to the territorial area of the municipality.

Regarding free or reduced-price offers, the following laws must be considered.

• Decree-Law No 70/2007 (“Regime of commercial practices with price reduction”).
• Decree-Law No 138/90 (“Regime for the Indication of Retail Prices”).
• Decree-Law No 57/2008 (“Unfair Commercial Practices Regime”).

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:

• when the consumer does not have to pay more than the cost indispensable to respond to the commercial practice and to collect the good or pay for its delivery; or
• in conjunction with the purchase of another product, provided that the price of this product has not been increased in order to cover all or part of the cost of the offer.

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.

• Decree-Law No 57/2008 (“Unfair Commercial Practices Regime”).
• Law No 24/96 (“Consumer Protection Law”).
• Decree-Law No 446/85 (“Legal Regime for General Contractual Clauses”).
• If applicable, Law No 16/2022 (“Electronic Communications Law”).

The soon to be applicable EU Artificial Intelligence (AI) Regulation prohibits manipulative and exploitative practices. According to Recital 29, however, common and legitimate commercial practices, for example in the field of advertising, that comply with the applicable law should not, in themselves, be regarded as constituting harmful manipulative AI-enabled practices.

In Portugal, there are still no specific national rules related to the use of artificial intelligence (AI) in connection with the development of advertising content. Implementation of the Regulation may change this reality in a foreseeable future.

Law No 27/2021 (“Portuguese Charter on Human Rights in the Digital Age”), in addition, 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 still 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, and implementation of the EU AI Regulation may impact this reality in a foreseeable future.

Chatbots should be clearly identified as AI-powered when in contact with natural persons. There are, however, no special rules or guidance regarding the use of chatbots. General terms of law (in particular, AI regulations and consumer protection laws) apply.

Considering that virtual-asset service provision is regulated in this 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:

• be directed to minors and may not present them consuming such beverages;
• encourage excessive consumption;
• undermine non-consumers;
• suggest excess, social success, or special abilities due to consumption;
• suggest the existence of therapeutic properties or any stimulating or sedative effects in alcoholic beverages;
• associate consumption with driving or physical exercise;
• indicate the alcoholic nature of the beverage as something positive;
• advertise products from 07:00 to 22:30 on both/either the radio and/or television;
• associate alcoholic beverages with national symbols such as the national flag; or
• promote alcoholic beverages in events where minors participate, such as sports, cultural, or recreational activities.

Concerning Tobacco

• The advertising of tobacco products is generally forbidden under Law No 37/2007 (“Tobacco Law”). The only permitted forms of advertising tobacco products are indicating its price, brand, and origin exclusively in the interior of the establishments that sell tobacco products, as long as that is not visible on the exterior of the establishments, namely on the window displays.
• Also, advertising of tobacco products is exceptionally allowed only in publications destined specifically to tobacco trade professionals or in publications edited and printed in third countries, as long as not directed primarily to the EU market.
• Promotional distribution and sale of tobacco, as well as providing samples and gifts, is also forbidden.
• It is forbidden to insert coupons or other strange elements in tobacco packages.
• It is also forbidden to sell tobacco products online.

These restrictions include vaping and heated tobacco unless the products do not contain any nicotine or tobacco.

Concerning HFSS Products

• Advertising of these products is forbidden in (i) schooling establishments from kindergarten to high-school, (ii) children’s parks that are public and open to the public, (iii) within 100 metres of such places, with the exception of advertising elements in commercial establishments, and (iv) sports, cultural, and recreational activities organised by the entities mentioned in (i).
• Advertising of these products is also forbidden in (i) television, audio-visual programmes, and radio in the 30 minutes before and after children’s programmes and programmes that have an audience of at least 25% below the age of 16, (ii) advertising in cinemas that are for people under 16 years of age, (iii) publications destined to people under 16 years of age, (iv) the internet through websites, pages, or social media, as well as in mobile apps destined for devices using the internet, when the content is directed towards people under 16 years of age.
• Also, advertising of HFSS products may never:
1. encourage excessive consumption;
2. belittle non-consumers;
3. create a sense of urgency or pressing need to consume the advertised product;
4. convey the idea of ease of acquisition, minimising costs;
5. convey the idea of benefit in its exclusive or exaggerated consumption, jeopardising the value of a varied and balanced diet and a healthy lifestyle;
6. associate the consumption of the product with the acquisition of status, social success, special skills, popularity, success, or intelligence;
7. use, in advertisements, figures, drawings, personalities, and mascots that are related to programmes aimed at children; or
8. communicate the characteristics of foodstuffs and drinks with a high energy value, salt, sugar, saturated fatty acid, and fatty acid content.

Treatment and Medicine

• Advertising of products and treatments that can only be obtained through a medical prescription is forbidden, with the exception of advertising included in technical publications destined to doctors and other health professionals.

Gambling

• Advertising regarding gambling must be performed in a socially responsible manner, namely the protection of minors, as well as other groups that are vulnerable and subject to risk.
• Gambling advertising can never be directed to minors and in schools or other infrastructures destined to minors, as well as within 250 metres from schools or other infrastructures destined to minors or in events destined to that same group.
• Gambling advertising can never be associated with the provision of loans.

Education

• Advertising for education must always indicate (i) the nature of the courses according to the official designation accepted by the competent services, as well as the duration of said courses, and (ii) the expression “without official recognition” whenever it has not been attributed by the competent authorities.

Concerning Automobiles

• Advertising regarding automobiles is forbidden whenever (i) it contains situations or suggestions of utilisation of the vehicle that may harm the personal safety of the user or a third party, (ii) it contains situations or suggestions of utilisation of the vehicle that harm the environment, and (iii) it presents situations that are an infringement of the Portuguese Road Code, namely speeding, dangerous manoeuvres, non-utilisation of safety accessories, and disrespect for signalisation or pedestrians.

There are some limitations regarding the timing of advertising. Refer to 10.1 Regulated Products.

Further, Law No 27/2007 determines the following with regard to product placement.

• Product placement is prohibited in news and current affairs programmes, consumer affairs programmes, religious programmes and children’s programmes.
• Product placement is allowed in all other programmes.
• Product placement may not influence the content or organisation of the programmes, their schedule or catalogue, nor affect the editorial independence of the operator.
• Programmes subject of product placement may not directly encourage the purchase or rental of the placed products or services.
• Product placement may not give undue prominence to products, services or commercial brands, particularly when the reference made is not justified for editorial reasons or is likely to mislead the public as to its nature, or because of the recurrent way in which those elements are presented or highlighted.
• Programmes containing product placement, when produced or commissioned by the television operator or on-demand audio-visual services operator broadcasting them, or by a subsidiary thereof, must be adequately identified at the beginning, at the end and when resumed after advertising breaks.

See 10.1 Regulated Products.