The advertising of alcoholic beverages, like other commodities that are addictive in nature, has its legal limits set by both national and European Union (EU) legislation.
Introduction
In recent years, there has been a trend towards stricter rules in this area, in an effort to reduce alcohol consumption in general and to protect minors from the influence of commercial communications with undesirable content that encourages the consumption of alcoholic beverages.
In the following article, we would like to present the basic regulation of advertising of alcoholic beverages from the perspective of the current legislation and outline the proposed revisions to the legislation regulating this area.
General legal regulation of advertising
The basic legal regulation in this area is the Czech Act No. 40/1995 Coll., on the Regulation of Advertising, as amended (the “Act on the Regulation of Advertising”), according to which advertising means any announcement, demonstration or other presentation disseminated in particular by the communication media, with the aim of promoting business activity, in particular promoting the consumption or sale of goods, unless otherwise provided by the Act on the Regulation of Advertising.
Within the meaning of the Act on the Regulation of Advertising, all means enabling the transmission of advertising are considered to be communication media, in particular periodicals and non-periodical publications, radio and television broadcasting, on-demand audio-visual media services, audio-visual productions, computer networks, carriers of audio-visual works, posters and leaflets.
According to Section 4 of the Act on Regulation of Advertising, advertising of alcoholic beverages is generally subject to a categorical prohibition:
- encourage the immoderate use of alcoholic beverages or make negative or ironic comments about abstinence or abstinence;
- target persons under the age of 18, in particular to depict them or persons who appear to be under the age of 18 consuming alcoholic beverages or using elements, devices or actions that appeal to persons under the age of 18;
- associate alcohol consumption with increased performance or be used in connection with driving;
- give the impression that alcohol consumption contributes to social or sexual success;
- claim that the alcohol in the drink has therapeutic properties or a stimulating or calming effect, or that it is a means of solving personal problems;
- emphasise the alcohol content as a positive characteristic of the drink.
The supervisory authority for compliance with the legal conditions for advertising alcoholic beverages is the regional trade licensing authorities, except in the case of advertising disseminated in radio and television broadcasting and in on-demand audio-visual media services (see below), where supervision is entrusted to the Council for Radio and Television Broadcasting.
Penalties for violation of the above specified conditions for the content of advertising of alcoholic beverages vary depending on whether the person commits the offence in the role of advertiser, processor or distributor, as well as the nature and severity of the violation, with the maximum possible fine for an offence in this area being CZK 2,000,000.
Radio and television Broadcasting
The specifics for advertising alcoholic beverages on radio and television screens are regulated by the Czech Act No. 231/2001 Coll., on the operation of radio and television broadcasting, as amended (the “Act on Radio and Television Broadcasting”).
In this context, it should be noted that the Act on Radio and Television Broadcasting applies only to so-called ‘linear broadcasting’, i.e. standard television or radio broadcasting where one programme follows another within the framework of a programme drawn up by the operator and the viewer or listener does not have the possibility to choose when and what to watch or listen to on a given broadcast. The operator of the service in question here also bears editorial responsibility for the content.
In addition to the general conditions imposed on advertising and teleshopping under Sections 48 and 49, Section 52 of the Act on Radio and Television Broadcasting contains special conditions for commercial communications concerning alcoholic beverages, which may not:
- be specifically aimed at children and adolescents or depict children and adolescents consuming alcoholic beverages;
- associate the consumption of alcoholic beverages with increased physical exercise or driving;
- give the impression that the consumption of alcoholic beverages contributes to social or sexual success;
- claim that alcoholic beverages have therapeutic, stimulating or calming effects or that they are a means of resolving personal conflicts;
- encourage immoderate consumption of alcoholic beverages or show abstinence or moderation in the consumption of alcoholic beverages in an unfavourable light;
- emphasise high alcohol content as a positive quality of an alcoholic beverage.
Failure to comply with the obligations set out in the Act on Radio and Television Broadcasting for commercial communications is punishable by a maximum fine of CZK 2,500,000.
Audio-visual media services
On-demand audio-visual media service means the provision of programmes to the public for the purpose of information, entertainment or education, enabling the viewing of programmes at a time chosen by the user and at his individual request on the basis of a catalogue of programmes compiled by the on-demand audio-visual media service provider.
These services differ from broadcasting in that they are ‘non-linear’ in nature, i.e. the viewer chooses the programmes and decides when and which to watch. However, it is also the case that the provider determines the content of the programmes and is responsible for it.
The Czech Act No 132/2010 Coll., on on-demand audio-visual media services, as amended (the “Act on Audio-visual Media Services”), sets out in its Article 8 the requirements for audio-visual commercial communications, and according to paragraph 3, such communications concerning alcoholic beverages must not be aimed at children and minors and must not promote immoderate consumption of such beverages, all under penalty of a maximum penalty of CZK 2,000,000 for non-compliance with the requirements.
Although the specific legislation in this area is very strict, the general provisions and categorical prohibitions laid down in the Act on Regulation of Advertising, as described above, apply here, as in all other forms of advertising which do not have their own specific legislation.
Expected changes
On 18 December 2018, Directive (EU) 2018/1808 of the European Parliament and of the Council of 14. November 2018 amending Directive 2010/13/EU on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audio-visual media services (Audio-visual Media Services Directive) (the “Directive”), in the light of the changing market situation, on the basis of which a draft law on video sharing platform services and on amendments to the Act on Radio and Television Broadcasting, the Act on Audio-visual Media Services and certain other laws transposing the Directive into the Czech legal system is currently being discussed in the legislative process.
The amendment should, among other things, increase the protection of consumers and minors from inappropriate content or unwanted advertising through the revised framework, especially on the increasingly popular and so far legally neglected online video sharing platforms (e.g. YouTube, Facebook, Instagram, Tik Tok), which are characterised by the fact that the content can be uploaded by their users themselves, whose editorial responsibility for the content of the shared video is limited.
The main objective of the new legislation is to set rules for online video sharing platforms similar to those for ‘linear’ broadcasting and ‘non-linear’ on-demand audio-visual media services and to allow providers of these services to apply statutory measures to eliminate undesirable content.
The supervisory authority here, as for broadcasting and on-demand audio-visual media services, will be the Broadcasting Council.
In addition to the introduction of stricter and more uniform regulation of alcohol advertising, the new legislation is intended to create a legal basis for self-regulation through codes of ethics, which set out more detailed requirements in this area, the aim of which must be to achieve effective restrictions on the exposure of minors to commercial communications relating to alcoholic beverages, as well as procedures for regular, transparent and independent monitoring and evaluation of compliance with these objectives and a mechanism for dealing with complaints, including a mechanism for the enforcement of proportionate sanctions for breaches of the rules laid down.
Conclusion
In addition to the general legal regulation set out in the Act on Regulation of Advertising, advertising for alcoholic beverages is currently regulated specifically in areas where the provider of the service determines its content, while the area of internet video sharing platforms, which are increasingly used by advertisers, is neglected by the legislation as they present an opportunity to place advertising with undesirable content directly into the content of user posts.
The transposition of the Audio-visual Media Services Directive (AVMSD), the draft transposition of which is currently in the legislative process and which we will continue to monitor for you, should bring change in this area.
If you have any questions regarding issues related to the legal regulation of advertising, we are at your disposal, so please do not hesitate to contact us.
Mgr. Tereza Dvořáková, attorney-at-law – dvorakova@plegal.cz
Mgr. Jakub Málek, managing partner – malek@plegal.cz
25.08.2022