Advertising rules for Belgian media

Commercial advertising is largely regulated by the Belgian Federal Act on Market Practices and Consumer Protection of 6 April 2010.[1] This Act stipulates that the use of editorial content in the media, for which the advertiser has paid, to advertise a product, when this is not made clear to the consumer, constitutes illegal misleading advertising.[2]  Other legislation and regulation on commercial advertising in the media almost exclusively focuses on the audiovisual media. The FLBA (Flemish Act of 27 March 2009 on radio and television broadcasting) [3] and the FRBA (French-Community Act of 27 February 2003 on audiovisual media services, modified by the Act of 5 February 2009) [4] contain specific regulations for advertising on radio and television, [5] where the ‘golden rule’ is that advertising should be clearly identifiable as commercial information and distinguishable from news information.[6] This rule is also the basic rule in most ethical codes and internal operational charters of the audiovisual broadcasters. There are special rules for commercial communication directed at minors, [7] for certain products (such as a general prohibition on advertisements for tobacco, weapons, etc.; and special rules on advertisements for alcohol and certain medicines) and for certain types of advertising (such as teleshopping).[8]

In particular, there is specific legislation with regard to those forms of advertisement that can cause confusion based on the commercial character of the information or its origin, such as with regard to ‘product placement’ [9] and ‘sponsorship’.[10]

Product placement on television

Where ‘product placement’ is concerned, Flemish broadcasters are bound by law to show a logo (‘PP’) on the television screen to indicate that a program is financed with product placement.[11] For French-language audiovisual media, the regulator CSA also recommends the use of a ‘PP’ logo on the screen to indicate the use of product placement to the public (though this recommendation does not have the force of law).[12]

Sponsorship on audiovisual media

Legislation on ‘sponsorship’ stresses in particular that the content and programming should not be influenced by the sponsor so that responsibility and editorial independence should not be affected.[13] Viewers and listeners should be clearly informed of the sponsorship, by indicating the name, logo or symbol of the sponsor at the start, during and/or at the end of the program.[14] There is a general prohibition against sponsoring news bulletins and other information-related programs.[15]

Case law of audiovisual regulators

It must be noted that the regulators VRM and the CSA have, in recent years, been called upon frequently to decide on the legality of commercial practices such as ‘product placement’ and ‘sponsorship’ and have developed their own case law on these topics. In their case law, the VRM and the CSA take as main criterion the principle of strict separation between editorial content and commercial information, which is laid down in the FLBA and FRBA. In practice, it is not always easy to classify an advertisement in one or another legal category (e.g. the line between product placement or sponsorship on the one hand and surreptitious advertising on the other hand is not always easy to draw).