Advertising & Marketing 2023 Comparisons

Advertising in Malta is subject to a comprehensive framework of laws and regulations. Within this context, the Consumer Affairs Act (Chapter 378 of the Laws of Malta) and Broadcasting Act (Chapter 350 of the Laws of Malta) are the primary sources of legislation regulating advertising in Malta. While the Consumer Affairs Act is relevant to all forms of advertisement, the Broadcasting Act (Chapter 350 of the Laws of Malta) is particularly applicable within the broadcasting and media sectors.

The applicability of the primary legislation depends on various factors, such as subject matter, the advertising platform, and the target audience of the advertisement. As such, additional legislation may also apply, either individually or collectively, depending on the specifics of the relevant case. This multifaceted approach underscores the commitment of Maltese authorities to maintain a fair, transparent, and consumer-centric advertising environment.

In Malta, breaches of advertising laws and regulations are enforced by relevant authorities depending on the applicable legislation. In relation to the primary laws applicable, violations falling within the scope of the Broadcasting Act are enforced through the Broadcasting Authority (the “Authority”). The Authority monitors and regulates all radio and television broadcasts from Malta. Violations of this Act are punishable by fines of up to EUR11,646, a six-month prison term, or both.

Consumer Affairs Act violations are overseen by the Malta Competition and Consumer Affairs Authority’s Enforcement Directorate. This authority investigates unfair practices, price transparency, and consumer legislation. Claims up to EUR10,000 are resolved by the Consumer Claims Tribunal. Larger claims are heard before the civil courts, with fines up to EUR47,000.

Breaches related to advertisement that are regulated by other legislation are subject to the applicable enforcement authorities, procedures and penalties.

Deceptive advertising is primarily regulated by the Broadcasting Act, Consumer Affairs Act and the Commercial Code (Chapter 13 of the Laws of Malta).

In relation to the Broadcasting Act, deceptive advertisement is any form of advertising that might mislead the public as to its nature. It is considered intentional if the advertisement is in return for payment or similar consideration. Any person natural or legal in contravention of the Act may be held liable.

Within the context of the Consumer Affairs Act, any person who contravenes any of the prohibitions related to deceptive advertising can be held liable, including all traders and sellers as defined within this Act.

The Commercial Code also defines deceptive forms of advertising in the same manner as the Consumer Affairs Act. The Commercial Code, in a very limited manner, addresses the liability of “traders” who contravene any of the prohibitions related to deceptive advertising within this code.

In the context of Maltese legislation, the definition of “advertising” may vary according to the medium being used and the applicable laws and regulations within the context. However overall, the term “advertising” encompasses varied modes of communication that aim to endorse and promote products, services, or the reputation of entities or individuals engaged in commercial, industrial, craft or regulated professions.

This definition not only underscores the substantial commercial dimension inherent to the concept of advertising within the Maltese jurisdiction but also allows for flexibility to accommodate the various types of advertising that may arise. In doing so, it creates a legal framework adaptable to diverse advertising formats while maintaining a focus on commercial intent.

This definition underscores the intrinsic commercial aspect of advertising within the Maltese legal framework. At the same time, it offers the latitude for a broad and flexible application to cater to the diverse modes of advertising that may arise. As such, the legislative framework can adapt to various advertising forms as they evolve.

Pre-approvals are not generally required from government or other authorities in relation to most forms of advertising. However, certain industries do require certain criteria to be met for advertisement to be permitted.

The Broadcasting Act applies to all transmission by means of radio and television. Within this context only programmes broadcast by licensees and contractors of the Authority in compliance with all provisions of the Act are permitted to advertise. Other persons providing broadcasting services in Malta would require authorisation to advertise from the Authority.

Maltese law does not specifically regulate individual forms of advertising. However, legislation related to consumer matters applies to all forms of advertising. As such, all forms of advertising, online and offline, must comply with this Act to be permissible.

Billboard and roadside advertising is specifically regulated by the Placing of Billboards and Advertising on the Road Regulations. This requires billboard structures to be licenced by the relevant authority in consideration of roadside safety.

Furthermore, sector-specific goods and services such as tobacco, alcohol, gaming and foodstuffs, are also subject to the restrictions and guidelines applicable to all forms of advertising.

Intellectual property rights take various forms; some require registration, such as trademarks, while others, such as copyrights, arise automatically. The rights under Maltese law are accorded through various legislation, such as the Commercial Code, the Copyright Act, the Trademarks Act, and the Patents and Designs Act.

IP law in Malta intersects with advertising law within the Consumer Affairs Act and Commercial Code in relation to comparative advertising. Comparative advertising is permissible in Malta so long as it is not misleading to the consumer. Within this context, comparative advertising that creates confusion between products, trademarks, tradenames, or other distinguishing marks of a competitor is prohibited. Practices that mislead or are likely to mislead the average consumer into making transactional decisions they would otherwise not have made are deemed misleading and thus prohibited.

The primary self-regulatory authority in Malta is the Broadcasting Authority (the “Authority”), established under the Constitution of Malta. The function of this Authority is to monitor and regulate, as far as possible, all radio and television broadcasts from the Maltese Islands, including all applicable advertising content.

Through the Broadcasting Act, the European Union Act (Chapter 460 of the Laws of Malta), and in consideration of various subsidiary legislation and other legal provisions, the Authority ensures that advertising content meets ethical and legal standards. Such legislation provides guidelines in relation to decency, accuracy, fairness, and the protection of minors and consumers.

The enforcement powers of the Authority are stipulated in Subsidiary Legislation 350.12 titled “The Broadcasting Authority (Enforcement Powers) Regulations”. When the Authority is made aware of advertising content that is in breach of such legislative guidelines, by means of a complaint or enquiry, the Authority would carry out investigations and evaluate the advertisement for potential infringements. The Authority can issue warnings, impose effective and proportionate sanctions, order the removal of offensive content, or impose broadcasting restrictions. In serious cases, the Authority may revoke a broadcaster’s license or take legal action.

Consumers can challenge advertising practices through a private right of action against businesses or entities that engage in misleading advertising that harms their interests. The Consumer Affairs Act provides the legal framework for such challenges.

The Consumer Claims Tribunals (CCT) have been established to hear and determine consumer claims that do not exceed EUR10,000, and where the claim relates to, arises out of or concerns, whether directly or indirectly, the purchase or hire of goods by a consumer from a trader or the provision of services by a trader to a consumer. Larger claims must be heard by the courts of Malta.

Action may also be sought by means of the Complaints and Conciliation Directorate, within the Malta Competition and Consumer Affairs Authority (MCCAA). Prior to the registration of such complaints, all efforts must be made to reach an amicable solution between the parties in dispute. Failing this, a complaint can be filed with the MCCAA. The MCCAA will evaluate the merits of the claim and inform the trader of their legal obligations. If an amicable solution is not reached, the consumer may then submit a claim before the CCT.

The CCT will inform the trader of the claim made against them and they will be given an opportunity to file a response. After the hearing/s, the arbiter will issue his/her decision. In certain instances, there is a right of appeal against the CCT’s decision.

In late 2022, several amendments were made to the Consumer Affairs Act concerning deceptive advertising to better adapt the legislation to more modern mediums and scenarios.

Article 51C was included to address misleading actions regarding the dual quality of goods, intended to address instances where marketing of goods across EU Member States is presented as being identical when the goods have a significantly different composition or characteristics.

Changes to Article 51D regarding misleading omissions and material information have resulted in the addition of paragraph (3) (f) relating to products on online marketplaces. This mandates that all essential information must be accessible to consumers for products sold on online platforms, irrespective of whether the third party selling the products is classified as a trader. Article 51D has also been supplemented by sub-article 3A, establishing provisions relating to ranking of commercial offers within online search results. Sub-article 5 was also added, relating to consumer reviews of products and information to be provided by traders.

Harmful and offensive advertisement in Malta is heavily regulated by the Broadcasting Act. Article 16K restricts any form of advertisement that would:

• prejudice respect for human dignity;
• promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
• encourage behaviour prejudicial to health or safety; and
• encourage behaviour grossly prejudicial to the protection of the environment.

To date, the regulation of advertising and enforcement of advertising regulations in Malta have remained relatively unaffected by any significant changes in the political climate or political administration.

However, it is worth noting that political advertising in the country has faced increased scrutiny in recent years. Concerns have been raised particularly about excessive campaign spending, an absence of transparency, and potentially misleading practices. It is important to recognise that this area is still evolving, and there are ongoing developments in the regulations governing political advertising in Malta.

Unfair and misleading advertising is heavily regulated by the Consumer Affairs Act, and while not directly referenced, deceptive advertising also falls within this remit. Article 51C and 51D of the Act provide for several “actions” and “omissions” considered misleading and in breach of the Act.

Misleading actions refer to, among other things, instances where advertising includes false information that may mislead or misdirect the average consumer. Even if the information is factually accurate, if the manner or context in which it is presented leads, or is likely to lead, the average consumer to make a decision they would not have otherwise made, it is deemed misleading.

Misleading omissions, on the other hand, involve omissions of material information that the average consumer may require to make a decision. This can also include information that is presented in a manner that is unclear, unintelligible, ambiguous, or untimely. The medium of communication must also be considered, particularly any limitations it may have.

Article 32B of the Commercial Code further prohibits traders from engaging in any form of misleading advertising. The Commercial Code directly references unfair and misleading advertising as delineated within the Consumer Affairs Act.

Furthermore, the Broadcasting Act considers advertising that is not immediately recognisable as such as “surreptitious”. Such surreptitious advertising is prohibited as this may mislead the public.

Likewise, subliminal advertising techniques, where marketing techniques are employed to be perceived by the subconscious mind, without being consciously perceived are also prohibited.

The Consumer Affairs Act establishes guidelines for evaluating the fairness of such practices in relation to consumer behaviour and perception. A commercial practice is considered in violation if it significantly distorts, or has the potential to distort, the economic choices of the average consumer as outlined in Articles 51C and 51D. The Act focuses on practices that could materially distort the economic choices of a specific group of consumers who may be more vulnerable due to factors like age, mental or physical infirmity, or credulity.

As such, a case-by-case method is applied. For example, if an advertisement employs exaggerated claims or statements that are not intended to be taken literally, it might not necessarily be in violation of the Act as consideration is made for the impact of these practices on the consumers being targeted.

This balance between commercial practices and consumer protection ensures that advertising remains transparent, informative, and fair to all parties involved.

As already explored, unfair and misleading advertising is heavily regulated by the Consumer Affairs Act. While there is no general need to substantiate advertising claims, should a query arise in relation to misleading commercial practices, substantiation would be required to further explore the issue at hand.

In relation to the use of reviews, testimonials and endorsements in advertising, while no specific legislation exists in Malta, the Consumer Affairs Act prohibits falsely claiming endorsements from public bodies or entities, creating or commissioning individuals to submit fraudulent consumer reviews or endorsements, and misrepresenting genuine consumer reviews or social endorsements for the purpose of promoting products.

It is further expected that reasonable and proportionate steps have been taken to verify that any consumer reviews originate genuinely from consumers who have actually used or purchased the product.

In Malta, there are no specific regulations or standards dedicated solely to product demonstrations. However, the general principles and regulations in the Consumer Affairs Act aimed at ensuring transparency, fairness, and ethical conduct in marketing practices apply.

Product demonstrations are indirectly addressed within regulations pertaining to misleading commercial practices. Product demonstrations, and related practices, such as “bait and switch” tactics, where a merchant invites consumers to purchase a product at an advertised price but fails to provide the specified item or demonstrates a faulty sample of it, are prohibited and considered misleading.

While Malta lacks dedicated regulations for product demonstrations, the overarching legal framework underlines the significance of transparency, honesty, and consumer protection in advertising and marketing activities, ensures fair treatment of consumers and upholds the principles of ethical business conduct.

No specific legislation exists in Malta pertaining to the use of testimonials and endorsements in advertising. However, the Consumer Affairs Act prohibits falsely claiming endorsements from public bodies or entities, creating or commissioning individuals to submit fraudulent consumer reviews or endorsements, and misrepresenting genuine consumer reviews or social endorsements for the purpose of promoting products. Such practices are misleading and unfair. All testimonials and endorsements must be truthful and accurate, and they must also be substantiated.

This is in line with the overarching EU legislation regulating unfair commercial practices – the Unfair Commercial Practices Directive (UCPD), which prohibits the use of untruthful testimonials and endorsements. Such practices are dark patterns, and are prohibited as they are likely to negatively influence consumer behaviour.

Specific legislation concerning testimonials and endorsements does exist in relation to the medical industry. Advertisements related to medical products in Malta are prohibited from containing any material that may refer to any testimonials and endorsement by scientists, health professionals, celebrities, well-known organisations, or persons who, because of their profession or celebrity status, could encourage the consumption of medicinal products. Moreover, legislation and ethical regulations applicable to all medical professionals in Malta generally prohibit them from providing testimonials and endorsements in advertising.

Disclosures in advertising are primarily governed by the Consumer Affairs Act. Overall, advertising and promotional literature must be clear, unambiguous, accurate and contain no false or misleading information.

Advertisements must provide clear, accurate, and truthful information about the products or services being advertised. Any material information that could affect a consumer’s decision to make a purchase must be disclosed.

In relation to advertising, sellers are not legally obliged to indicate prices, however where the seller decides to indicate a price, the price must be indicated clearly in terms of the Price Indication Regulation. The price displayed must be the final retail selling or unit price, including VAT and any other taxes or charges. In this manner there can be no hidden charges that the purchaser may incur.

When the advertising of products such as pharmaceuticals, food, tobacco, or alcohol, is regulated by specific regulations, disclosure of health and/or safety warnings may be necessary in accordance with the applicable legislation.

While no special laws or regulations apply, advertising law in Malta specifically prohibits discrimination on the basis of gender, race or ethnic origin, nationality, religion or belief, disability, age or sexual orientation. As such, advertising in Malta should ensure that the perpetuation of stereotypes or discriminatory content is avoided.

In late December 2021, a road safety advert was flagged by the National Commission for Promotion of Equality. The video clip was criticised for perpetuating both racial and gender stereotypes. Following the report, the advert was pulled from all media platforms, although no legal action was taken. Malta has a zero-tolerance policy towards stereotyping in advertising.

No special laws or regulations exist pertaining to inclusion, diversity and equity in advertising.

In terms of the Consumer Affairs Act, misleading or false advertising is prohibited in all types of communication that promote products or services whether online or offline. While environmental (or “green”) advertising claims are not specifically addressed under Maltese law, unfounded environmental (or “green”) advertising breaches Maltese Consumer Affairs regulations.

Claims made in relation to environmental or “green” advertising must be accurate, truthful and clear, and cannot in any way mislead the average consumer.

Commercial practices whereby intentional advertising practices are carried out to manipulate or deceive users into taking certain actions that they might not have chosen under normal circumstances are prohibited within the context of unfair and misleading advertising, regulated by the Consumer Affairs Act and Commercial Code.

Furthermore, in the Broadcasting Act, advertising that is not immediately recognisable as an advertisement, and consequently might mislead the public as to its nature is considered surreptitious and prohibited. Likewise, subliminal advertising techniques are also prohibited.

The Broadcasting Act further requires that sponsorship agreements for programmes must be transparently disclosed to viewers. Such programmes should clearly display the sponsor’s name, logo, or other identifying symbols. Additionally, references to the sponsor’s products or services can serve as distinctive markers. These identifiers should be presented appropriately at various points, such as the beginning, during, and/or the end of the programme.

Where advertisement is carried out in the form of product placement, the Act further provides that viewers must be clearly informed of the existence of such product placement by an appropriate identification at the start and at the end of the programme and when a programme resumes after an advertising break, to avoid any confusion on the part of the viewer.

Where advertisement is concealed, should the advert deceive or be likely to deceive the average consumer, this may be considered a “misleading action” under the Consumer Act. As such, when advertising the extent of the trader’s commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product must be made clear to the consumer.

Advertising to children and young people is addressed in most regulations pertaining to advertising in Malta. 

Under the Broadcasting Act, the protection of minors is considered under Article 16K, whereby audio-visual commercial communications that cause physical, mental, or moral detriment to minors in any manner is prohibited. Article 16JA of this Act further provides that any such forms of advertising that may cause harm to minors as listed above shall only be made available to the public in a manner so as to ensure that minors will not normally hear or see them.

A subsidiary legislation entitled the “Broadcasting Code for the Protection of Minors” (Subsidiary Legislation 350.05), further elaborates on this aspect. This addresses a vast array of restrictions intended to specifically protect minors from the effects and influences of advertising, minimising the exposure and impact advertisement may have on minors. 

The Consumer Affairs Act also further prohibits directing advertisements towards children to buy advertised products or persuade their parents or other adults to buy advertised products for them.

The Broadcasting Act mandates that viewers must be clearly informed about the existence of any sponsorship agreement by a commercial entity that may exist.

The Act emphasises the need for transparency by ensuring that viewers are made aware of any financial or commercial involvement in the content. Programmes that have been sponsored must be distinctly identified as such. This includes the use of the sponsor’s name, logo, or other symbols during the programme. This identification serves to differentiate between regular content and content that has been influenced or financially supported by a sponsor.

If advertising is conducted through product placement within a programme, the Broadcasting Act requires clear and unambiguous disclosure. This means that viewers must be informed at the beginning and end of the programme, as well as after advertising breaks, about the existence of product placement within the content.

It is important to note that advertising law in Malta is not governed by a single legislative act. Rather, the complex nature of advertising leads to a variety of claims, each dependent on the specific subject matter and issues involved.

Within this context, claims and remedies are determined by the nature of the subject matter in question. Claims arising from advertising inherently fall under the jurisdiction most applicable to the issue at hand. Depending on the complexities of each individual claim, jurisdiction could either be civil, criminal, or even both.

Comparative Advertising is directly addressed in the Commercial Code, whereby Article 32A prohibits traders from engaging in comparative advertising practices. However, the Commercial Code goes on to provide exceptional circumstances in which such comparative advertising is permissible.

Accordingly, comparative advertising is permissible when comparing like with like. Such comparisons must be objective and cannot be misleading. The Commercial Code explicitly refers to the Consumer Affairs Act for further elaboration on this matter.

Under the Consumer Affairs Act, comparative advertising is restricted if it may give rise to a misleading action under Article 51C. Specifically, such advertising may be classified as misleading if it creates confusion – considering the factual context, all features and circumstances – among any products, trade marks, trade names or other distinguishing marks of a competitor, and as such causes or is likely to cause the average consumer to take a transactional decision that he/she would not otherwise have taken.

While there is no outright prohibition against comparative advertising under Maltese law, it is generally only permissible if it is not misleading to the consumer.

In terms of advertising law there is no restriction imposed on the use of the name of a competitor or a competitor’s trademark or a competitor’s packaging in comparative advertising. However, advertisers must adhere to the legal restrictions to ensure fair competition and prevent misleading practices. The simplest measure in this regard is the concept of comparing “like with like”, meaning that the products or services being compared must be identical in every manner, including but not limited to use, weight and purpose. The comparison made must be factual and truthful.

Because of the stringent requirement for products and services to be identical, Maltese companies have typically refrained from engaging in comparative advertising, and examples of successful implementation are few and far between.

It is crucial to note that the permissibility of comparative advertising does not absolve any potential liability under intellectual property law. Under the Trademarks Act (Chapter 597 of the Laws of Malta), the offending party may be liable for civil and even criminal sanctions, depending on the use and intent behind the act.

Comparative advertising is inherently risky, often provoking competitors and potentially infringing on their intellectual property rights.

Misleading comparative advertising may give rise to civil or even criminal sanctions. Under the Commercial Code, where comparative advertising is in breach of the Code, upon the request of the injured party the trader responsible may be found liable for damages and interest or face a penalty. The injured party may further demand that all material in breach of the Code is removed or destroyed depending on the circumstances.

Claims for damages and interest arising from misleading comparative advertising are governed by civil law and adjudicated based on the particulars of the claim.

If a penalty is sought, it falls within the jurisdiction of the First Hall of the Civil Court. The determined penalty ranges between EUR465.87 and EUR4,658.75, dependent on various factors such as the severity of the case, duration, and intent. This penalty is then paid to the injured party as a settlement.

Under the Trademarks Act, the unauthorised use of a trade mark with the intent of personal gain or causing loss to another, and without the consent of the owner may lead to criminal liability. Offenders can face imprisonment for up to three years, a fine of up to EUR23,295, or both upon conviction.

Ambush marketing may be defined as the unauthorised use of marketing tactics by any person, whether natural or legal, to capitalise on the significant media exposure of an event, team, or individual, often at the cost of a rival company’s official affiliation. Such marketing would be carried out without the necessary licensing, affiliation or sponsorship fees.

Malta does not have specific legislation or regulations dedicated solely to addressing ambush marketing. However, this does not mean that such practices are permitted. Due to the inherent nature of ambush marketing, aspects of intellectual property, trade mark, competition, and consumer protection laws may be applicable in such situations. Any marketing of a product, including comparative advertising, that creates confusion is considered a misleading action and as such prohibited. Depending on the circumstances and the applicable law, criminal and/or civil liability may apply.

Advertisement online and/or via social media is not directly regulated under Maltese law. However, the generic laws found within the Consumer Affairs Act are applicable. Additionally, all advertising forms must conform to sector-specific regulations, for example, the promotion of tobacco products is prohibited, and specific advertising standards apply to gambling- and alcohol-related advertisements.

Online advertising for online gaming or gambling services is governed by the Gaming Commercial Communications Regulations (Subsidiary Legislation 583.9). This strictly prohibits any form of advertisement, publication, or commercial communication related to gaming and gambling services unless the game and the operator are duly authorised in accordance with the Gaming Authorisations Regulations. Advertisements in this sector are required to be socially responsible, transparent, and should promote responsible gaming. They must not target minors or vulnerable individuals, and unsolicited or targeted commercial communications are also prohibited.

In Malta, liability for content posted by others on an advertiser’s site or social media channels can involve various considerations, as outlined below.

Defamation and Libel Laws

The Media and Defamation Act (Chapter 579 of the Laws of Malta) regulates all forms of dissemination of ideas, information or opinions on matters of public interest to the general public or to a portion of the public under the editorial control of an editor. In this regard, defamatory words in published written media may constitute libel. Within this Act “written media” also extends to any writing or print distributed through electronic online platforms. Civil proceedings for defamation under this Act may be instituted against the author, editor or even the publisher in certain situations. As such, advertisers can be held liable.

Intermediary Liability

E-Commerce Directive (Directive 2000/31/EC) of the European Union has been transposed into Maltese law, namely the Electronic Commerce Act (Chapter 426 of the Laws of Malta). This provides some protection to online intermediaries, including advertisers’ platforms, from liability for third-party content. In this regard, the advertiser is not considered liable so long as they did not initiate the transmission, did not select the receiver of the transmission and did not select or modify the contents of the transmission.

Intellectual Property

Advertisers may face liability if third-party content posted on their platforms infringes on intellectual property rights. Within the context of the Trademarks Act, advertisers may be ordered to erase or remove any offending signs.

See 2.6 Disclosures and 4.1 Special Rules Applicable to Social Media.

No such regulations or restrictions exist in Malta.

Native advertising is subject to certain regulations to ensure transparency and prevent misleading practices. Native advertising must be clearly identified as advertising and distinguished from editorial or non-promotional content. It should be evident to the audience that they are engaging with sponsored content.

Clear labelling or design elements that differentiate native adverts from regular content are essential. Any material connection between the advertiser and the content must be disclosed. If the content is sponsored or paid for, this fact must be transparently communicated to the audience.

In line with the Consumer Affairs Act, advertisers should not deceive or mislead consumers and should avoid creating confusion between commercial messaging and editorial content.

Influencer campaigns are not directly regulated under Maltese law; however, depending on the advertising medium, the relevant legislation will apply. As a result of the Consumer Affairs Act, it is expected that influencers and/or brand ambassadors should disclose any connections with the brands or clients being endorsed. All information provided must be truthful, accurate and transparent and any endorsements must be genuine.

All forms of advertisement presented by influencers and/or brand ambassadors must also comply with relevant product and service regulations while always being mindful of not misleading the average consumer and not negatively affecting minors.

The civil courts shall impose a penalty upon any person who is found to have infringed a provision of the Consumer Affairs Act or any regulation made thereunder for each infringement.

No distinction in this regard is made between the influencer and/or advertiser. Both have an obligation not to contravene the rights of the consumer under the Consumer Affairs Act.

Under the Consumer Affairs Act, making persistent and unwanted solicitations by telephone, fax, email or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation is considered an aggressive commercial practice and not permitted. This is without prejudice to the Data Protection Act (Cap. 586) and the Processing of Personal Data (Electronic Communications Sector) Regulations (S.L. 586.01).

Under the same Act, where a trader provides access to consumer reviews of products, information needs to be provided about whether and how the trader ensures that the published reviews originate from consumers who have used or purchased the product. It is a misleading commercial practice to state that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.

If a customer review is considered misleading as outlined in 5.3 Consumer Reviews,  any person found to have breached the Consumer Affairs Act may be subject to a penalty.

The use of electronic communications for the purpose of direct marketing in Malta is regulated by the “Processing of Personal Data (Electronic Communications Sector) Regulations” (Subsidiary Legislation 586.01), promulgated under the Data Protection Act (Chapter 586 of the Laws of Malta). This applies to the processing of personal data in connection with the provision of publicly available electronic communications.

Notice

Email marketers are required to provide clear and transparent information about their identity, the purpose of processing personal data, and the rights of the data subjects.

Consent and Opt-In Requirements

No person shall make use of a publicly available electronic communications service to make direct marketing unsolicited communication by means of email without the prior consent of the recipient. Consent should be freely given, specific, informed, and unambiguous. However, where a data controller has obtained email addresses from customers through the sale of a product or a service, the controller may use these details for direct marketing of their own similar products or services.

Opt-Out Mechanism

Every marketing email must include a clear and straightforward way for recipients to opt out (unsubscribe) from further communications. This opt-out mechanism must be free of charge and unambiguous, and should be provided at the time the information was initially collected as well as in every subsequent marketing communication.

Liability

Without prejudice to any other available remedies, including the right to lodge a complaint with the Information and Data Protection Commissioner, a data subject who believes that their rights under the Data Protection Act or even the General Data Protection Regulation (EU) 2016/679 have been infringed, may initiate a judicial action against the data controller or processor. This can be done by filing a sworn application before the First Hall of the Civil Court.

Any person who contravenes or fails to comply with these regulations shall be liable to pay an administrative fine not exceeding EUR23,293.73 for each violation and EUR2,329.37 for each day such violation persists.

An action may also be instituted in the same manner for damages caused by the use of such information in a manner contrary to the Regulation or Act.

Contraventions of this kind may also breach aspects of the Consumer Affairs Act, depending on the type of marketing practices, therefore such liability should also be borne in mind.

Inbound telemarketing is a type of telemarketing where customers call a company to inquire about or purchase a product or service they have heard about from advertisements. While no specific regulations are dedicated to inbound telemarketing, the generic rules in the Consumer Affairs Act apply. This mandates that the trader must maintain transparency and clear information, avoiding any misleading or aggressive commercial practices.

Outbound telemarketing would fall within the scope of the “Processing of Personal Data (Electronic Communications Sector) Regulations” (Subsidiary Legislation 586.01). Within this context, no person shall make use of a publicly available electronic communications service to make an unsolicited communication for the purpose of direct marketing by means of an automatic calling machine, without the prior consent of the recipient. Direct marketing by means of communication not listed in this subsidiary legislation, such as conventional mail and cold calling, involving human interaction, is permissible so long as it is at no charge to the subscriber or user, while also granting the recipient the ability to request that such communications cease.

Liability in relation to inbound telemarketing would be subject to the Consumer Affairs Act as outlined in 1.2 Enforcement and Regulatory Authorities, while breaches of outbound telemarketing would also be subject to the data protection regulations explored in 6.1 Email Marketing.

The Processing of Personal Data (Electronic Communications Sector) Regulations also applies to messaging and multimedia services (including short message services and enhanced media services). As such, 6.1 Email Marketing and 6.2 Telemarketing are applicable.

Regulatory and self-regulatory requirements pertaining to the utilisation of consumer data for the purpose of targeting or retargeting consumers with advertising are integral to the practice of targeted/interest-based advertising. This approach involves tracking and profiling individuals, enabling the delivery of advertisements to specific demographic segments and individual users. The tracking and profiling processes can take place within a single platform or extend across various websites, applications, devices, and services.

Targeting is executed based on a variety of data categories, including provided, observed, or inferred information, individually or in tandem. “Provided data” signifies information actively furnished by the data subject, while “observed data” encompasses data gathered because of the data subject’s use of a service or device. “Inferred data” denotes information formulated by the data controller using data provided by the data subject or observed by the controller.

Compliance with regulations is essential when processing such data in adherence to Article 6 of the General Data Protection Regulation (GDPR) 2016/679. Compliance necessitates lawful justification, which may encompass several requirements such as data subject consent, the controller’s obligation to adhere to a legal requirement, the performance of a task in the public interest or official capacity, and the pursuit of legitimate interests on the part of the controller or a third party.

Consequentially, any use of consumer data for targeted advertising must be justified in terms of the law.

Advertising to children is addressed in most regulations pertaining to advertising in Malta. The Broadcasting Act and subsidiary legislation titled the “Broadcasting Code for the Protection of Minors” ensure the protection of minors from any harmful audio-visual commercial communications.

Specific to data collection, Article 8 of the GDPR 2016/679, applicable in Malta, provides that the processing of a child’s personal data shall be lawful where the child is at least 16 years old. Where the child is under 16, such processing shall be lawful only if and to the extent that consent is given or authorised by the holder of parental responsibility over the child. While the GDPR allows Member States to lower this age limit, provided it is not below 13 years, Malta has chosen not to exercise this option.

Liability for violating such rules is determined on a case-by-case basis, considering the specific circumstances involved. Fines for such violations are delineated within the framework of the GDPR and the Data Protection Act.

No further rules are applicable.

Competitions of this nature fall under the purview of the Gaming Act (Chapter 583 of the Laws of Malta). Sweepstakes are primarily regulated based on the element of risk involved. Within this context, sweepstakes are “games of chance” and as such normally require licensing. Similarly, free prize draws are exempt from this requirement in Malta. This exemption hinges on the principle that games of chance, which neither involve a stake for participation nor anticipate the possibility of a prize, are exempt.

Any gaming service or critical gaming supply associated with an exempt game does not require a license or additional authorisation. The Malta Gaming Authority provides for a De Minimis Games Directive, Directive 3 of 2019, defining conditions exempting games. Such games should resemble a lottery or raffle-type game, participation cost should not exceed EUR1 and the prize’s value should not surpass EUR100. Additionally, the game’s outcome should not depend on the result of another game.

Additionally, no person may organise more than ten de minimis games per calendar year and within this year, no more than two per month.

As regards advertising and marketing, consideration must be had for the subsidiary legislation titled “Requirements as to Standards and Practice, Award of Prizes, Conduct of Competitions” (Subsidiary Legislation 350.22). This stipulates the general conduct required for competitions held by means of broadcasting media. Competitions should be conducted fairly and according to established competition rules known to participants along with an accurate description of prizes.

The Consumer Affairs Act, on the other hand, directly addresses competitions and/or prize promotions in relation to misleading commercial practices. In this regard, traders are not permitted to carry out competitions or prize promotions without awarding the prizes described or a reasonable equivalent. Traders are also not permitted to fabricate instances whereby consumers are given the false impression that they have won or will win a prize, or will win a prize after carrying out a particular action, when in fact either there is no prize to be won, or claiming the prize will involve asking the consumer to pay money or incur a cost. Such an action is considered an aggressive marketing practice.

The Gaming Act clearly distinguishes between games of skilland games of chance,  each falling under distinct regulatory frameworks. A game of skill is defined as an activity where the outcome is primarily or predominantly influenced by the skill level of the participant. However, sporting events are explicitly excluded from this definition, unless otherwise specified by law.

Normally, games of skill do not necessitate a license, unless involving a stake for participation or a monetary prize or its equivalent. In such instances, they are categorised as controlled skill games and necessitate licensing. The entity operating or promoting the said activity is obliged to establish that an activity qualifies as a game of skill exempt from licensing.

Conversely, a game of chance involves activities where the outcome is largely or predominantly determined by chance, rather than skill. This includes games that rely on luck or random events and also extends to activities based on future events that are currently unknown.

Further to 7.1 Sweepstakes and Contests and 7.2 Contests of Skill and Games of Chance, all games of chance not exempt under the Gaming Act must be registered with the Malta Gaming Authority. This registration is mandatory, and operation without approval is illegal.

On the other hand, games of skill generally do not require licenses unless they are considered controlled skill games.

Various application processes apply, depending on the type of operation being established. A few of the most common processes are outlined below.

Low-Risk Games

Low-risk games as determined by the Fifth Schedule of the Gaming Authorisations Regulations (S.L. 583.05) and Gaming Definitions Regulations (S.L. 583.04), require a Low-Risk games permit issued by the Malta Gaming Authority. Such permit is only valid for a singular event and expires upon conclusion of the event. The application shall be filed not less than seven working days before the commencement.

Non-profit Game

A non-profit game is a licensable game wherein the stake cannot exceed EUR5 per player and where over 90% of the net proceeds go to a charitable, sporting, religious, philanthropic, cultural, educational, social, or civic purpose entity. Such permit is only valid for a singular event and expires upon conclusion of the event. The granting of a permit for a non-profit game (tombola/bingo game, or lottery game) is also subject to several conditions.

Gaming Companies

The licensing of such companies entails a very detailed examination of the company’s composition, formation, and intentions. Licensing from the Malta Gaming Authority requires a minimum six-month process on average. In brief, this process includes a “fit and proper” assessment of key individuals involved in the operation’s financing and management. Assessment includes the evaluation of their competence, money laundering and terrorist financing prevention, and adherence to criteria such as honesty, integrity, reputation, and financial standing. Additionally, probity checks are carried out with other regulatory bodies and law enforcement agencies.

The Malta Gaming Authority also examines a detailed business plan, including three-year financial projections, outlining proposed activities, marketing strategies, resource planning, and growth goals. The Malta Gaming Authority also assesses the applicant’s technical and operational company policies and procedures, aligning them with a system documentation checklist.

Following this, the gaming system to be implemented, and the game itself, will be audited through a practical test run. Following a year of operation, the system is again audited to demonstrate its proper functionality and compliance prior to licensing. Such operations are also subject to future checks and reviews to maintain the license.

The advertisement of free or reduced-price offers is generally permissible, subject to compliance with the Consumer Affairs Act and any related subsidiary legislations.

Advertisers must also pay careful attention to price indication, which is regulated under the Consumer Affairs Act (Price Indication) Regulations (Subsidiary Legislation 378.9). The aim of these regulations is to ensure that consumers are fully aware of the exact cost of a product before making a purchase, without needing to inquire with the seller. As such, the price must be indicated in a clear and unambiguous manner.

Though sellers are not legally required to indicate prices in advertisements, if they choose to do so, the Price Indication Regulations stipulate that the displayed price must be the final retail or unit price, including VAT and any other taxes or charges. In this manner there can be no hidden charges that the purchaser may incur.

In Malta, automatic renewal or continuous service offers require explicit consumer consent. These agreements adhere to the principle of pacta sunt servanda, meaning legally valid agreements hold the weight of law for all parties involved. Article 992(2) of the Civil Code (Chapter 16 of the Laws of Malta) allows contract revocation by mutual consent or as prescribed by law.

Contracts must follow the principle of good faith, obliging parties to fulfil not only explicit obligations but consequential obligations that naturally arise.

The Consumer Affairs Act prohibits aggressive practices that coerce consumers into decisions they would not have otherwise made. Such practices undermine the contract’s validity and good faith. Advertisements do not form binding contracts, but deviations from advertised claims may constitute unfair or misleading commercial practices.

No such rules or guidance exists.

No such rules or guidance exists.

No such rules or guidance exists.

The Malta Digital Innovation Authority Act (Chapter 591 of the Laws of Malta) establishes the Malta Digital Innovation Authority (MDIA) as the regulatory body overseeing activities within the blockchain sector, encompassing the trading of cryptocurrency and/or NFTs.

The MDIA assumes authority over the acknowledgment of associated industries within Malta. Any form of visual or auditory advertising or representation related to innovative technology services or arrangements is prohibited from implying recognition or endorsement by the MDIA without explicit authorisation.

Such a restriction is also subject to the Consumer Affairs Act as a barrier against deceptive advertising practices across all advertising platforms.

While specific laws for metaverse advertising are absent, existing legislation, including the Consumer Affairs Act, applies. All advertisements, regardless of the platform, must follow relevant regulations for products and services, avoiding misleading content.

Alcohol

Alcoholic products are subject to Subsidiary Legislation 350.24 titled “Requirements as to Advertisements, Methods of Advertising and Directions Applicable to Alcoholic Drink Advertising, Sponsorship and Teleshopping”. While advertising alcohol is allowed, it is subject to numerous restrictions aimed primarily at protecting minors from undue influence and effects. The guidelines specify time periods during which alcohol advertising is permissible and set forth additional measures to protect minors. They also outline what types of advertisements are considered unacceptable, address safety-related aspects, and even dictate how humour can be used in advertisements so as not to undermine the regulations.

Tobacco

Tobacco and all related products are specifically regulated by the “Advertising and Promotion of Tobacco Products Regulations” (Subsidiary Legislation 315.06). Overall, the advertisement of all tobacco-related products is prohibited in Malta. Pictures of cigarettes or any such representation pertaining to tobacco products are only permissible on cigarette machines for the purpose of product selection and must include health warnings.

Medical Industry

Advertising medical products and services in Malta is subject to strict regulation. Subsidiary Legislation 350.30, titled “Requirements as to Standards and Practice on Programmes involving the Participation of Certain Health Care Professionals in the Broadcasting Media and Requirements as to Advertisements and Directions Applicable to Medicinal Products and Treatments”, applies. Additionally, the Medicines Act (Chapter 458) and Medicinal Products (Advertising) Regulations (Subsidiary Legislation 458.32) also apply.

These regulations stipulate that all advertisements for medical products must encourage rational usage, include all legally mandated information, be free from misleading claims and must only feature medicinal products that have valid authorisation for sale in Malta. While advertising non-prescription medicines to the public is allowed, promoting prescription-only or psychotropic/narcotic medicines to the public is prohibited. Advertisements cannot guarantee effects, make comparative superiority claims, include endorsements, or target minors.

Given the industry’s unique complexities, each medical advertisement should be assessed individually, considering the specific product or treatment and the targeted group.

Food

Subsidiary Legislation 449.46, titled the “Labelling, Presentation and Advertising of Foodstuffs Regulations” defines and outlines most food products sold in Malta and requires clear and transparent labelling, clearly outlining the contents of all food products sold on the Maltese market. Food labelling is especially important, and must contain the product name, list of ingredients, and quantities of specific components like sugar and fat, the best before date and so on. At present, no legislation in Malta prohibits or restricts the advertisement of food or drink high in fat, salt or sugar.

Cannabis

In recent years, cannabis in Malta has been legalised, within limits, for medical and recreational use. Legislation has been implemented in a manner so as to reduce the harm that cannabis use may possibly cause to society. Legal Notice 56 of 2023 titled the “Responsible Use of Cannabis (Licensing of Organisations) Regulations, 2023” prohibits the direct and indirect promotion aimed at stimulating demand for cannabis. As such, advertisement of cannabis use is not permissible in Malta.

Furthermore, any cannabis-related association, as defined by Article 7A of the Drug Dependence (Treatment not Imprisonment) Act, (Chapter 537 of the Laws of Malta), is prohibited from advertising its activities in any manner.

If advertising is conducted through product placement within a programme, the Broadcasting Act requires clear and unambiguous disclosure. This means that viewers must be informed at the beginning and end of the programme, as well as after advertising breaks, about the existence of product placement within the content. When advertising the extent of the trader’s commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product must be made clear to the consumer.

Online Gaming

Online advertising for online gaming or gambling services is governed by the Gaming Commercial Communications Regulations (Subsidiary Legislation 583.9). In this regard any form of advertisement, publication or commercial communication is prohibited in relation to gaming and gambling services, unless the game and the operator are duly authorised in accordance with the Gaming Authorisations Regulations.

The regulations stipulate that all such advertisements must adhere to socially responsible guidelines. This includes several specific limitations and outright prohibitions against unsolicited or targeted commercial communications. The advertisements must promote responsible gaming and in no way target minors and vulnerable persons.

Adult and Sex-Related Services

While advertising for adult and sex-related services lacks specific legislation, existing regulations in advertising, consumer affairs, and criminal law indirectly regulate this area. Advertisements may be restricted or prohibited to safeguard public morals and protect minors. The Criminal Code mandates establishments with adult content to display plain warnings outside, devoid of imagery. Advertising explicit content in public is banned. Moreover, advertising sexual tourism is specifically prohibited. Furthermore, in relation to prostitution, public solicitation is illegal, making advertising of such services prohibited.