Advertising & Marketing 2021 Comparisons

Last Updated October 08, 2021

Law and Practice

Authors



NITSCHNEIDER & PARTNERS is a medium-sized law firm based in Bratislava, Slovakia, that specialises in employment law, media and advertising, intellectual property and all the main areas of commercial law. It has been ranked among the leading law firms by international and local ranking organisations. Thanks to its membership of the Global Advertising Lawyers Alliance (GALA), the firm has gained considerable expertise and an excellent reputation in the areas of advertising and media, and IP law. Dušan Nitschneider, a founding partner, currently serves as president for the GALA EMEA region. In the area of employment law, the firm has been selected as the only Slovak affiliate of Ius Laboris and has been identified as a first-tier expert for labour law in Slovakia numerous times. Clients in the field of advertising and media include prominent international and local companies and corporations across all business sectors, as well as advertising agencies, sector alliances and associations.

In Slovakia, advertising rules are scattered between numerous laws and regulations, including:

  • the Act on Advertising (general and certain sector-specific advertising rules);
  • the Consumer Protection Act (consumer protection and unfair commercial practices);
  • the Commercial Code (unfair competition rules);
  • the Civil Code (personality and privacy protection);
  • the Copyright Act;
  • the Trade Mark Act;
  • the Act on Electronic Communications;
  • the Act on E-commerce;
  • the Act on Digital Broadcasting;
  • the Act on Broadcasting and Retransmission (radio and TV broadcasting);
  • the Data Protection Act and the General Data Protection Regulation (GDPR) (personal data protection); and
  • the Act on Foods (misleading labelling of food).

Most of the regulations regarding consumer protection, e-commerce, unfair competition and privacy are a result of the implementation or direct effects of EU laws. In consequence, basic advertising standards in this respect are very similar to the standards in other EU countries.

Apart from the state regulation, there is strong and well-known self-regulation of the advertising industry in Slovakia. For more details, see 1.4 Self-Regulation.

Compliance with advertising laws is enforced in different ways. Primarily, compliance is monitored and enforced by public authorities, such as:

  • the Slovak Trade Inspection;
  • the Public Health Office;
  • the State Institute for Drug Control and the Institute for State Control of Veterinary Biologicals and Medicaments;
  • the National Bank of Slovakia; and
  • the Radio and TV Broadcasting Council.

Apart from government authorities, compliance with advertising laws is enforced by general courts, especially with respect to unfair competition practices, including misleading advertising, and consumer protection matters.

Sanctions and remedies in administrative proceedings include:

  • financial penalties;
  • the obligation to withdraw the illegal advertisement from the market; and
  • the obligation to publish the relevant decision of the supervising body in mass media.

Remedies in court proceedings include an obligation:

  • to refrain from unlawful conduct;
  • to remedy the negative consequences of unlawful conduct;
  • to compensate damages; and/or
  • to refund the unjustified enrichment.

In certain cases, the advertiser that breached the advertising rules can even become subject to criminal proceedings.

Apart from the traditional methods of enforcement of laws mentioned above, new EU legislation is increasingly encouraging member states to introduce co-regulation systems, in which rules are co-created as well as co-enforced by state authorities and associations of industry professionals. In Slovakia, co-regulation has been discussed in connection with the preparation of a new Act on Media Services.

Generally speaking, advertisers – ie, brand owners (typically business companies) – are primarily responsible and can be held liable for deceptive advertising. In Slovakia, most businesses take the form of a limited liability company or a joint-stock company, in which the owners and shareholders are not liable for breaches of laws by such companies. On the other hand, the indirect liability of members of the statutory bodies (for damages caused to the company and/or the creditors) cannot be excluded.

Third-party service providers such as advertising agencies may be liable for disseminating advertising that is not compliant with general advertising rules (in particular, if they actively perform activities leading to the dissemination of the advertising), but they are typically not liable by law for deceptive advertising. Nevertheless, they can still be liable towards the advertiser if they have a contract with the advertiser under which they are obliged to ensure full compliance of the advertising with advertising and consumer protection laws and standards.

Moreover, audio-visual services providers (eg, TV or radio operators) could also be held liable for deceptive advertising as they are, by law, obliged to ensure that advertising and teleshopping do not harm the interests of consumers and do not undermine consumer confidence.

The primary self-regulation system of the advertising industry in Slovakia is formed of rules set out by the Slovak Advertising Standards Council (SASC), which brings together organisations actively involved in the marketing communication process, and which is a member of the European Advertising Standards Alliance (EASA). The main aim of SASC is to secure and promote the dissemination of honest, appropriate, decent, legal and truthful advertising. The members of SASC – including individual brands, media organisations, and associations of advertisers, marketers and media agencies – are committed to comply with the rules of advertising set forth in the Code of Ethics issued by SASC (the "Code of Ethics").

The Code of Ethics is a general regulation applicable to all forms of advertising and contains general principles and standards of advertising as well as requirements for the advertising of specific goods and services. Although the Code of Ethics does not replace or supplement the legal regulation, its principles are generally respected by advertisers in Slovakia. The key principles of the Code of Ethics comprise legality, truthfulness, decency and transparency. The rules contained therein are more detailed than the rules contained in the Act on Advertising; thus, they can also serve as an interpretation tool for legal regulation and generally as a source of good practice for the whole advertising industry.

Apart from self-regulation within SASC, there is self-regulation within other sector associations; for instance, IAB Slovakia, the biggest association on the Slovak digital market, which represents leading Slovak publishers, media agencies and other important players active in online advertising in Slovakia.

If consumers or any private citizens consider any advertising as breaching advertising laws, they may file a complaint with the competent public authority, which may initiate administrative proceedings and eventually impose a fine on the advertiser if it breached the advertising rules.

Apart from that, consumers have a right of private action in the case of a breach of the obligations arising from the consumer protection laws. They may claim adequate financial redress as well as compensation for damage.

Moreover, consumers have a right of private action where the advertising breaches unfair competition rules set out in the Commercial Code, including rules defining misleading advertising, provided that the alleged conduct is capable of being detrimental to consumers. Consumers may file an action, either individually or through a consumer association, and require the violator to refrain from unlawful conduct, remedy the negative consequences of unlawful conduct, and/or pay compensatory damages and/or refund the unjustified enrichment acquired by unfair competition conduct.

There are various industries, products and services that are specifically regulated and require a more attentive approach in terms of advertising.

For instance, the advertising of guns and ammunition, as well as tobacco products, is prohibited, with only a few exemptions. Similarly, the advertising of prescription medication, a medication that is reimbursed based on public health insurance and medication that is not registered in Slovakia is prohibited, except where the advertising is addressed to healthcare professionals and drug stores.

Specific (more restrictive) advertising rules also apply to the advertising of alcohol, OTC drugs, food supplements, baby formula and certain financial services.

Apart from that, the Act on Advertising prohibits the advertising of products whose manufacture, sale, supply or use is prohibited. This restriction implies that it is prohibited to advertise services (eg, gambling apps) if the advertiser does not possess an appropriate licence for their provision.

Lastly, it is completely prohibited to advertise the availability of human organs, tissues and cells with the aim of offering or acquiring financial gain or comparable benefits.

One of the most notable recent trends in Slovakia relating to deceptive advertising is the increasing interest of consumers, businesses and regulators in green marketing, which unfortunately often slips into greenwashing.

As an example, in 2021, the Arbitration Committee of SASC dealt with an interesting energy-related green-marketing/greenwashing case. The largest energy supplier in Slovakia used a marketing strategy claiming that for a small extra charge, the consumer's household can have energy from purely renewable sources. The Arbitration Committee assessed a complaint from a consumer who claimed that the supply of energy from purely renewable sources in Slovakia is not technically possible, and therefore the ad should be considered deceptive. After examining the evidence, the Arbitration Committee ruled that the advertisement was indeed misleading and decided that the advertisement must be modified or withdrawn from the market.

In 2020, an attempt was made to change the rules for the advertising of consumer credit. According to the proposed legal act, commercial communications on consumer credit were supposed to contain a specific warning in the wording: “Caution! Borrowing money costs money”, which was to cover 10% of the total area of the advertising. At the time of writing, the proposed legal act has not yet been adopted; however, it should be subject to discussions in the near future. The proposed wording could be inconsistent with EU regulations that already harmonised this area, namely with Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers.

The COVID-19 pandemic certainly caused delays in court proceedings, including court proceedings relating to advertising. On the other hand, the authors noticed hardly any differences in the decision-making practice of self-regulatory bodies. The main reason is that while court proceedings are oral and public, proceedings before self-regulatory bodies are usually conducted in writing.

After the internet was flooded with all sorts of information about COVID-19, there was a much more intense public debate about the responsibility of the disseminators of this information, especially harmful, or potentially harmful, hoaxes. Following these discussions, the responsibility of the media and online platforms for the dissemination of illegal advertising also began to be discussed more frequently among professionals.

In recent years, both the government and the president have changed in Slovakia.

The new Slovak government represents itself as “pro-European” and "reformist”. It is therefore expected that there will be an increased emphasis on the implementation of recently adopted EU laws such as:

  • Directive (EU) 2018/1808 amending the Audiovisual Media Services Directive;
  • Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market;
  • Directive (EU) 2019/789 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes; and
  • Regulation (EU) 2019/6 on veterinary medical products.

One of the highlights of the implementation of EU laws in the near future should be the contemplated adoption of a new Act on Media Services that should replace the current Act on Broadcasting and Retransmission and the Act on Digital Broadcasting, and unify the rules for audio-visual services providers.

The new Slovak president is known for her positive approach in facing environmental issues as well as other social issues. In the longer term, increased public awareness about these topics is expected and perhaps increased interest in these topics among professionals in the advertising industry as well.

The Slovak Commercial Code defines misleading advertising as advertising that misleads, or could mislead, a person to whom it is addressed, and that may affect the economic behaviour of such person or that harms, or may harm, another competitor or consumer.

According to the Code of Ethics, misleading advertising is advertising that, in particular:

  • misleads the average consumer or significantly influences, or is likely to significantly influence, the economic behaviour of the average consumer in relation to the product in a manner that prevents them from making a qualified decision; or
  • transmits in an unclear, incomprehensible, multi-meaning or inappropriate manner information essential to the average consumer for making a qualified decision; or
  • uses another misleading business practice.

Both definitions of misleading advertising are quite broad. A simple potential to mislead a consumer and affect their economic behaviour is enough to constitute a breach of the law/self-regulatory rules.

It must also be noted that a claim that is true in itself may also be considered to be misleading if, in view of the circumstances and context in which it is used, it is likely to mislead the average consumer.

The advertising is always assessed as a whole in enforcement proceedings, meaning that it can be declared as conflicting with laws even if individual advertising claims appear to be compliant with laws. Of course, there are exceptions for certain types of claims that cannot be objectively measured.

For instance, apparent exaggeration is generally permitted in advertising. Based on this principle, puffery or an otherwise clearly fanciful advertising message that is clearly obvious and understood by the average consumer is acceptable without substantiation, provided there is no specific claim or factual statement relating to the properties and characteristics of the advertised product or service. For example, the advertising claim "best in the galaxy" would represent an apparent exaggeration and would be compliant with laws. On the other hand, in the case of a specific claim in a puffery advertising such as "best for stain removal on the market", the advertiser would have to be ready to substantiate such claim, if somebody challenged the truthfulness of the claim.

Substantiation is not specifically required for making advertising claims, meaning that there is no regulatory entity in charge of pre-clearing the veracity of advertising. However, consumers generally have the right to receive truthful and accurate information regarding advertised products and services.

Even if there is no specific substantiation requirement, if a competitor or a consumer challenges the accuracy of a given claim, the advertiser must be ready to prove the accuracy of its claim by substantiation of the alleged facts. Substantiation is especially crucial for comparative advertising claims and for the advertising of specific products such as drugs or food supplements.

Generally speaking, advertisers should only use claims that are truthful and can be supported with relevant evidence (of course, with exemptions such as general advertising claims or puffery claims), as the consumers have the right to receive truthful and accurate information regarding advertised products. Therefore, it is in the advertiser's best interest to support its claim about the product or service with sufficient evidence having an objective explanatory value.

There are several industries where the testing is subject to stricter regulation. One of them is the advertising of OTC medications. These medications can be advertised only if they are registered in the Slovak Republic. For successful registration, the producer must comply with rigorous standards on testing and clinical studies. From a practical point of view, the advertiser can verify whether the OTC medication obtained registration in publicly available registers, and if so, it can advertise the producer's OTC medication. This also applies mutatis mutandis to OTC veterinary medications.

Another industry with stricter requirements on testing is the food industry. An advertiser that wants to make nutrition and health claims on food must meet and respect statutory limits required by Regulation (EC) 1924/2006 on nutrition and health claims. Advertising without respecting these limits will be considered as deceptive advertising. Independent testing is therefore strongly recommended (and, as indicated in Article 15 of the regulation, required in some cases).

Similarly, requirements on testing with respect to cosmetic products are exhaustively defined in Regulation (EC) 1223/2009 on cosmetic products, or in Regulation (EC) 528/2012 on the making available on the market and use of biocidal products with respect to biocidal products.

As mentioned before, only registered medicaments can be the subject of sale and the subject of advertising in Slovakia. Consequently, health claims connected with medicaments must be supported by a result of a clinical study, which is necessary for their registration.

Standards on clinical studies are rigorous and are defined mainly in Act No 362/2011 of the Coll. Medicines Act and the ICH E6 (R2) Guideline for good clinical practice. The process is very formal, costly and long lasting.

All advertising claims must comply with the general rules of advertising contained in the Act on Advertising and consumer protection laws. All advertising claims must be, in particular, honest, truthful and not misleading (with some exemptions, including puffery advertising). There are, however, certain types of claims that are subject to specific requirements.

For instance, according to the Act on Designations of Origin for Products, information about the geographical origin of the product may only be used in advertising if the product indeed has its origin in a specific region by means of the Act. In consequence, anyone may demand that the designation of origin is forbidden from being used on the same or similar products and that such products are withdrawn from the market if the conditions for use of the designation have not been met.

Similarly, advertisers may only use or refer to a national environmental mark if they fulfil conditions specified by applicable laws.

Comparative advertising is permitted, provided that it meets requirements specified by the Act on Advertising, which is generally based on EU legislation.

In particular, comparative advertising is permitted if it:

  • compares goods, services or immovables (products) satisfying the same needs or determined for the same purpose;
  • objectively compares one or more specific, representative, material and verifiable features of the products, including their price;
  • does not discredit or disparage competitors’ trade marks, trade names, other distinguishing features, goods, services, activities or standing;
  • does not misuse the advantage of the trade mark, trade name or other distinguishing features of the competitor, or the designation of the origin of the competing products;
  • does not represent goods or services as imitations or copies of goods or services bearing a protected trade mark or trade name;
  • does not create confusion between entrepreneurs, between the advertiser and the competitor, or between the trade marks, trade names, other distinguishing features, goods or services of the advertiser and the competitor; and
  • is not misleading.

Comparative advertising that does not comply with the above legal requirements is prohibited. On the other hand, if the advertising does meet the criteria specified above, it can identify a competitor by name. In practice, however, comparative advertising mostly refers to “other products” and “other producers” and does not mention a competitor specifically.

Comparative advertising claims must fulfil the criteria specified by the Act on Advertising (see 3.1 General Requirements). Moreover, as comparative advertising compares specific products or producers, or it compares a specific product/producer to “the others”, it is crucial that its advertising claims are fair and objective. The advertiser must be ready to prove its claim; thus, the substantiation must always be one of the pillars of the comparative advertising.

Advertisers can challenge comparative claims made by a competitor primarily through court proceedings, or through proceedings before self-regulatory bodies.

In a court proceeding, an advertiser may claim for the competitor to refrain from challenging comparative claims and to eliminate the faulty situation, and to seek adequate redress, which may also be provided in monetary terms, to compensate damages and to return unjust enrichment.

In proceedings before the self-regulation bodies, the advertiser may claim modification of the competitor's claim and ad or its withdrawal from the market.

In November 2020, the Arbitration Committee of SASC assessed a piece of comparative advertising via online articles by a large operator of gas stations, which compared the quality of coffee and hot dogs at gas stations operated by a competitor. According to this competitor, the article subjectively identified coffee sold at the advertiser's service stations as the best and its competitor's as the worst, which clearly led to infringement of the competitor's rights and legitimate interests. The SASC Arbitration Committee ruled in favour of the competitor as no objective criteria to support comparative claims were proved (eg, defining the exact evaluation methodology or ensuring a certain objectivity of the evaluation; for example, in the form of a blind test, which would increase its credibility). The ruling recommended modification of the ad or its withdrawal from the market.

Slovak law does not distinguish social media advertising from other forms of advertising. Therefore, the general rules of advertising – which are scattered between various laws, including those covering advertising in general, unfair competition, consumer protection, or personal data protection – accordingly apply to social media advertising. Similarly, the self-regulatory rules contained in the Code of Ethics issued by SASC are applicable to advertising and marketing via social media as well.

As there is no difference between social media advertisement and other forms of advertisement, advertisers are facing all the general legal challenges.

Apart from these general legal challenges, there are various challenges that are specific for social media advertising. For instance, for regulators and competitors, the challenges include questions over the liability of individual members of an advertising chain, and difficulty with securing evidence about a breach of advertising laws (since the defective content may be cancelled in seconds) or about a link between an influencer and a brand.

For advertisers, it may be challenging to co-operate with influencers and at the same time protect corporate values of the brand; or to expose their advertising claims to user-generated content, which does not have to be always generated by consumers. Of course, despite these pitfalls, online space and, in particular, social media remain perfect channels for spreading commercial communication by brands.

Although the liability of advertisers for third-party content on their social media channels is generally limited by means of the E-commerce Directive, an advertiser could be responsible for advertising claims made in user-generated content, especially if the advertiser had full or substantial control over its social media channels and if it was aware of defective content. Of course, the advertiser would also be liable for third-party-generated content on its social media channels if it actively participated in any way in generating such defective content.

There are no specific codified rules governing the use of disclosures as to the content and the format of disclosure, neither for disclosures in traditional media nor for disclosures on social media. Nevertheless, general principles of advertising require the advertising to be truthful and transparent.

One of the means to achieve truthfulness and transparency of the advertising is the use of a fair disclosure. Such disclosure must be appropriate and sufficient to correct any false impression raised, or likely to be raised, by the advertising claim. It should have legible content in terms of font size, and it should specify at least any basic limitations of the key advertising claim; for instance, "available only from January till March".

Moreover, the advertising of specific products, such as drugs or baby foods, has its own rules as to the information that must be disclosed in the advertising. For example, the advertising of drugs must contain information on correct use and an explicit instruction to read the written instructions contained in the product package, and the advertising of baby foods must contain a recommendation on breastfeeding preference.

Rules applicable to social media platforms contained in Slovak laws are based on EU laws. In consequence, the liability of social media platforms is, for the time being, limited by means of the E-commerce Directive. Slovakia has not imposed obligations on information society service providers under Article 15 (2) of the E-commerce Directive; ie, an obligation for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or an obligation to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.

There are no specific laws or regulations in Slovakia related to native advertising in the online space; thus, general binding and self-regulatory rules apply. In particular, general advertising rules, as well as consumer protection laws, prohibit any form of hidden advertising.

Considering the foregoing, the regulators will, in the first place, assess if the native advertising is clearly distinguishable from the remaining content of the platform. According to the Code of Ethics, each ad must be identifiable as such. Native advertising via social media should therefore always be transparent and visibly marked as such in order not to confuse the users of the platform. Without a clear disclosure, the advertiser and the media operator could be in breach of general requirements for truthfulness and honesty of advertising.

The use of influencers in advertising campaigns has experienced a significant boom in recent years. More and more advertisers prefer targeting their advertising campaigns to specific audiences rather than disseminating the advertising to the general public. Advertisers have understood that influencers are a perfect tool for ad targeting.

At the moment, there are no specific laws or regulations related to influencer marketing via social media, even though this form of advertising has become very attractive for advertisers in recent years. In the absence of specific rules, general binding and self-regulatory rules apply.

A basic (implied) requirement for influencer marketing via social media is a clear disclosure of, and recognisability of, the relationship between the influencer and the advertiser. According to the Code of Ethics, there is a relationship between an advertiser and influencer if the communication process initiated by the advertiser or a person authorised by the advertiser is carried out in return for remuneration or other consideration. The Code does not specify the forms of such consideration. Whilst any kind of material consideration is clearly caught by the rules, it is questionable if a reward in the form of an increase in the number of clicks or followers would also be regarded as consideration establishing a link between the advertiser and the influencer.

Due to a boom of influencer marketing in recent years, the adoption of an Ethical Code of Influencer Advertising is expected soon, with specific rules for influencer marketing, at least on a self-regulatory level.

One of the basic principles of Slovak law is that every person is liable only for their own actions and omissions. Of course, there are exemptions from this principle, but the principle itself is always a good guide for defining who is liable for a breach of advertising laws. If the advertiser does not have control over the content produced by the influencer, it cannot be held liable for a breach of advertising laws. On the contrary, if the advertiser creates content for the influencer, it can easily be held liable for a breach of laws.

In any case, influencer marketing is a peculiar form of advertising, because the advertiser more or less connects its brand with the influencer's personality and actions. Therefore, even in a set-up where the advertiser cannot be held liable for an influencer's advertising claims, it is important to remember that the advertiser can still suffer substantial damage to its own reputation due to a breach of laws by the influencer.

Rules of email marketing are scattered between various legal acts, including:

  • the Act on Advertising;
  • the Act on Electronic Communications;
  • the Act on E-commerce; and
  • the GDPR.

The rules can be summarised as follows.

  • Existing and former clients – direct marketing of own goods and services that are similar to already purchased ones is allowed without prior consent. The client must be provided with an opt-out option.
  • New or potential clients – prior consent with direct marketing is required. Once the consent is received (opt-in), the client must be provided with an opt-out option.
  • New or potential clients (email without personal data) – prior consent is required. Using an analogy with the rules above, once the consent is received (opt-in), the client should be provided with an opt-out option.

In addition to the rules specified above, Slovak laws require that the identity and address of the sender of the email are always clearly disclosed. Otherwise, direct marketing in any of the above forms may be regarded as illegal.

For a breach of the above rules, the advertisers can be sanctioned primarily:

  • under the GDPR, with a fine of up to EUR20 million or 4% of the last year's income;
  • under the Act on Electronic Communications, with a fine of up to 5% of the last year's income; and
  • under the Act on Advertising, with a fine of up to EUR64,000.

Telemarketing (inbound and outbound) in Slovakia is possible only with the prior consent of the client. Once the consent is received (opt-in), the client must be provided with an opt-out option.

The sanctions specified in 6.1 Email Marketing are also applicable to illegal telemarketing.

The Slovak Regulatory Authority for Electronic Communications and Postal Services has started focusing on the detection of illegal activity in this area. In July 2021, it asked Slovak consumers to report telemarketing that seems illegal to them.

Text messaging with marketing content falls within the definition of electronic communication. In consequence, the same rules and liabilities as those specified in 6.1 Email Marketing also apply to text messaging.

It is worth mentioning that text messaging advertising is not as popular as email marketing in Slovakia. One of the main reasons is the principle of data minimalisation following the GDPR. This principle limits the ability of data controllers to process phone numbers of the clients or users, as this data may be deemed unnecessary for the purpose of data processing. Another reason is market practice. Newsletters and email offers are usually preferred over text messages, as they allow more detailed marketing content.

Targeted/interest-based advertising online is now directly connected with a prior collection of cookies. According to the GDPR and court practice of the CJEU, the controllers may collect cookies only with the prior consent (opt-in) of the user.

Targeted/interest-based advertising connected with direct marketing is possible with the consent of the user (this applies to potential clients) or based on a legitimate interest of the controller (this applies to existing clients). Where a controller uses automated decision-making or profiling, it must fulfil extra information obligations stipulated by the GDPR.

The potential sanction for a breach of these restrictions is a fine of up to EUR20 million or up to an amount equal to 4% of last year's income of the entity that breached the rules (and its group). In practice, however, the fines are usually much lower. In 2020, the Slovak supervising authority imposed fines only in thousands of euros in most cases. Nevertheless, it is expected that the fines for breaching the rules set forth by the GDPR will be substantially higher in the future.

Advertising to minors has always been a very sensitive topic in Slovakia. According to the Slovak Act on Advertising, ads must not:

  • abuse the trust of minors;
  • encourage behaviour that may endanger their health, mental development or moral development; and/or
  • display them in dangerous situations.

Self-regulating rules protecting minors are contained in the Code of Ethics, according to which:

  • ads must not abuse the natural trust of minors and their lack of life experience;
  • ads for a product may not contain any invitation to minors or in any way indicate that if a minor does not buy a certain product or does not find another person to buy such a product, the minor will not fulfil any obligation to a third party or organisation; it is not decisive whether that person or organisation is the originator of such a challenge;
  • ads must not encourage a minor to think that if they do not own the claimed product, they will in any way become inferior to other minors;
  • ads may not directly or disproportionately indirectly call on minors to urge parents or other adults to obtain the claimed product; advertising intended for children should not give the impression of urgency or necessity of the purchase;
  • ads must not arouse in children the feeling that their parents or other family members have not fulfilled any obligation towards them;
  • ads must not affect children through the use of disproportionate violence; and
  • ads must not reduce or disparage the authority, responsibility, judgement or taste of parents or other adults responsible for the upbringing and health of minors.

The protection of minors (in particular, in the online space) is expected to be further strengthened through the implementation of Directive (EU) 2018/1808 amending the Audiovisual Media Services Directive.

As far as the personal data of children is concerned, its processing is now primarily regulated by the GDPR. According to the GDPR, the personal data of children may be defined as any information relating to identified or identifiable children. An identifiable child is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that child.

According to Slovak laws, a child is defined as any person under the age of 18. If the advertiser wants to process the personal data of children, it must determine the purpose of such processing and the legal basis for such processing, and fulfil other legal obligations under the GDPR. If the advertiser wants to process the personal data of children on the basis of consent, the consent must be granted by their parents. Parental consent is not required if the child has already reached the age of 16.

As mentioned above, the implementation of Directive (EU) 2018/1808 amending the Audiovisual Media Services Directive should bring further protection for children in the online space, including the protection of their personal data. The Directive explicitly states that the personal data of minors collected or otherwise generated by media service providers shall not be processed for commercial purposes, such as direct marketing, profiling and behaviourally targeted advertising. This restriction should also be applicable to video-sharing platforms such as YouTube and even to social media platforms if the provision of programmes and user-generated videos constitutes an essential functionality of that service.

Sweepstakes and contests represent a common marketing tool in Slovakia.

According to Slovak laws, a consumer (promotion) game is one in which the participants are not asked to pay a stake and the scope of which is the promotion of goods and services. Participants can be required to purchase certain goods or services in order to enter the game. Such purchases are not considered to be a stake, unless the purchase price is obviously excessive, in which case the difference between the usual price and such excessive price could be regarded as a stake and such game could be regarded as a gambling game.

While consumer games are only regulated by the Slovak Civil Code and relevant consumer protection laws, gambling games are regulated by the Slovak Act on Gambling Games and their organisers must have an appropriate licence.

Terms and conditions of sweepstakes and contests must be clear, not misleading, and must be easily accessible to the participants. If there are any specific conditions or restrictions for participation in a sweepstake or a contest, such conditions and restrictions should be fairly communicated to the potential participants. More specific rules for sweepstakes and contests are contained in the Code of Ethics. For instance, advertising that includes a consumer competition, a consumer game, or similar consumer activity must not promise that participation in a consumer competition is guaranteed to bring luck to the consumer (if not every participant in the consumer competition is to be rewarded), and/or state that non-participation in a consumer competition will lead to misfortune.

Slovak laws do not distinguish between contests of skill and games of chance as long as such contests represent a consumer game. In consequence, if the scope of such games is the promotion of goods and services, then the rules applicable to consumer chance-based games are applicable to the same extent as skill-based contests. As mentioned above, from the perspective of Slovak laws, it is more important to distinguish between a consumer contest and a gambling game. However, it is more likely that contests of chance fall within the definition of a gambling game, rather than contests of skill.

There are no registration or filing requirements for chance-based or skill-based promotion contests. These contests do not have to be approved by any public authority. On the other hand, if a contest has elements of a gambling game and falls within the definition of a gambling game, the organiser of such a contest must first obtain a specific licence.

Under the Act on Gambling Games, a gambling game is one in which a player/participant, after paying a stake, can win a prize if they meet the conditions predetermined by the game plan. Results of the gambling game depend exclusively or predominantly on the chance or unknown result of a certain circumstance or event. As mentioned above, purchases in consumer contests are generally not considered to be stakes unless the purchase price is obviously excessive.

Terms and conditions of loyalty programmes, just as with the terms and conditions of sweepstakes, must be clear, must not be misleading, and must be easily accessible to the participants. All specific conditions or restrictions must be fairly communicated to the potential participants.

Special requirements for advertising loyalty programmes are contained in self-regulatory rules. According to the Code of Ethics, each loyalty programme must have established rules before its commencement, and these rules must be adequately published and made available to every consumer upon request. From the rules, it must be clear to the average consumer:

  • what is the mechanism of the loyalty programme;
  • who organises the loyalty programme;
  • who participates in the loyalty programme;
  • what are the conditions under which a consumer may participate in the loyalty programme; and
  • what is the benefit for participation in the loyalty programme.

A product or a service may be advertised as "free of charge" only if the consumer indeed does not have to pay anything, except for necessary response and delivery costs. Describing a product as "gratis", "free", "free of charge" or with a similar term if the consumer, in fact, must pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the product is considered an unfair commercial practice, which is prohibited under Slovak laws.

As far as special discounted prices are concerned, although it is permitted to show a regular price and a lower special discounted price in advertising, such advertising would not be acceptable if the "normal" price was not representative, the goods having never actually been sold and/or offered for sale at that price. It should be noted that sellers have a legal obligation to keep a register of prices, which can also be used as evidence in the event of a dispute regarding the truthfulness of discounted price offers.

In practice, the disclosure of the price must not give the impression that the price is lower than it actually is. Apart from the price itself, or the manner of calculating the price, consumers must be informed about other related costs, or at least about the fact that there may be other related costs.

Automatic renewal/continuous service offers are currently regulated by:

  • the Civil Code;
  • the Consumer Protection Act; and
  • the Act on Consumer Protection in respect to Distance Contracts.

In general, the marketer must inform the consumer about the duration of the contract before such contract is concluded. In the case of automatic renewal/continuous service offers, the marketer must also inform the consumer about the conditions of termination of the contract. Failure to do so, or incomprehensibility of this information, may, in a critical case, mean that the consumer will not be obliged to pay for the automatically extended services/provided goods.

Conditions on termination of the contract must be fair. When a fixed-term contract anticipates automatic renewal, the consumer must be provided with sufficient time for taking a decision whether or not they will accept renewal of the contract. What “sufficient time” means depends on the nature and length of the provided services and should be evaluated on a case-by-case basis. For example, a monthly subscription to a mobile app should allow consumers not to accept the next subscription at least a couple of days prior to the expiry of the previous subscription. On the other hand, a period of two to four weeks may be sufficient for a fixed-term contact with a duration of several years. Failure to provide the consumer with sufficient time causes invalidity of the provision on automatic renewal of the contract. Consequently, the consumer may not be obliged to pay for these services or goods.

Organising and advertising sports betting as well as other forms of gambling is permissible, but only if the organiser holds a specific licence.

The advertising of unlicensed gambling is prohibited. Apart from general adverting rules, the advertising of licensed gambling is regulated primarily by self-regulation rules. For instance, according to the Code of Ethics, the advertising of licensed gambling must not encourage negligent participation in a lottery and must not encourage the creation or strengthening of lottery addiction.

The advertising and marketing of sports betting and gambling are permissible only if the organiser of the game holds an appropriate licence. The advertising of unlicensed gambling is prohibited. The advertising of licensed gambling must be particularly responsible. For instance, according to the Code of Ethics, the advertising of licensed gambling must not encourage negligent participation in a lottery and must not encourage the creation or strengthening of lottery addiction.

Currently, there is no specific regulation regarding the sale or advertising of cryptocurrency and/or NFTs.

Consequently, advertising of these products is not prohibited and must comply with the general advertising rules and consumer protection laws. All ads must be, in particular, true, accurate and not misleading.

There is no legal obligation to include a specific disclosure in the advertising of cryptocurrency and/or NFTs. Nevertheless, the Slovak National Bank has repeatedly stated that companies providing services related to cryptocurrencies are not under its supervision; thus, consumers should be particularly cautious when investing in, and using, cryptocurrencies. Including such disclosure with the advertising of such products is therefore advisable.

NITSCHNEIDER & PARTNERS, advokátska kancelária, s. r. o.

Lazaretská 12
811 08
Bratislava
Slovakia

+421 2 2092 1210

office@nitschneider.com www.nitschneider.com
Author Business Card

Law and Practice in Slovakia

Authors



NITSCHNEIDER & PARTNERS is a medium-sized law firm based in Bratislava, Slovakia, that specialises in employment law, media and advertising, intellectual property and all the main areas of commercial law. It has been ranked among the leading law firms by international and local ranking organisations. Thanks to its membership of the Global Advertising Lawyers Alliance (GALA), the firm has gained considerable expertise and an excellent reputation in the areas of advertising and media, and IP law. Dušan Nitschneider, a founding partner, currently serves as president for the GALA EMEA region. In the area of employment law, the firm has been selected as the only Slovak affiliate of Ius Laboris and has been identified as a first-tier expert for labour law in Slovakia numerous times. Clients in the field of advertising and media include prominent international and local companies and corporations across all business sectors, as well as advertising agencies, sector alliances and associations.