Federal Anti-monopoly Service clarifies role of online messenger systems in advertising

Introduction

Online messenger systems are popular – and not just for private communications. Advertisers are increasingly using online messenger systems to promote businesses, as well as their goods and services. As a result, the use of instant messaging services may trigger various legal concerns, including with regard to advertising compliance.

In Russia, online messenger systems are subject to regulatory requirements enforced by the Federal Service for Supervision of Communications, Information Technology and Mass Communications (Roskomnadzor) or the Federal Security Service. However, advertising legal requirements are enforced by the Federal Anti-monopoly Service (FAS).

The FAS central division often issues guidelines by way of official letters addressed to its local divisions. In these guidelines, FAS clarifies various issues involving the application of the Federal Law on Advertising (Law 38-FZ of 13 March 2006). Although such official letters are not legally binding, they play an important role in the daily enforcement of advertising and promotion and should thus be taken into consideration by market players.

FAS Letter АК/52901/19

On 24 June 2019 FAS issued Letter АК/52901/19 on Clarifications on the Issue of Advertising in Messengers (Viber, WhatsApp), the Classification of Information as Advertising and Methods to Detect Advertisers. The letter is notable as it reveals the regulator's approach to advertising campaigns disseminated via various instant messaging services.

E-advertising requirements

As noted above, the main focus of Letter АК/52901/19 is to set out the regulator's position regarding the publication (dissemination) of advertising information via software, such as WhatsApp, Viber and other apps that transmit and receive data via electronic networks. According to FAS, advertising via online messenger systems is subject to the general provisions on advertising via electronic networks (so called 'e-advertising').

According to Article 3(1) of the Federal Law on Advertising, 'advertising' is any information which is:

• disseminated by any means, in any form and using any device;
• addressed to an undetermined number of people; and
• aimed at drawing attention to the advertised item (eg, product, intellectual property or event), generating or maintaining interest therein and promoting it on the market.

FAS has expressly noted that the classification of information as advertising is done on a case-by-case basis, taking into account the presence or absence of the above features.

In accordance with Article 18(1) of the Federal Law on Advertising, the following requirements apply to e-advertising:

• The dissemination of advertising via electronic networks is permitted only with the prior consent of the addressee (ie, subscriber).
• The burden to prove the existence of such consent rests with the advertising distributor.
• The advertising distributor must immediately cease the dissemination of advertising to a specific person if they request it to do so.

If the above requirements are not met, FAS or its territorial divisions may find the respective infringers administratively liable.

Who is liable for incompliance?

Pursuant to Article 38(7) of the Federal Law on Advertising, advertising distributors will be liable for a violation of Article 18 of the law. However, FAS has clarified that the dissemination of advertising via WhatsApp, Viber and other apps is not a legal ground to classify software developers as advertising distributors. In Letter АК/52901/19, FAS noted that:

• e-advertising is subject not only to consent requirements, but also to other requirements as established by law; and
• these requirements must be complied with by advertisers (ie, the person or entity that determines the advertising item and the campaign's content).

Procedural aspects

By virtue of the relevant administrative regulations of 23 November 2012 (711/12), FAS can collect evidence (eg, documents, information and written or verbal explanations) from third parties – including governmental agencies, business entities and individuals – which are necessary to confirm the circumstances of a particular case. In this regard, FAS, insofar as it is competent to do so, may file a corresponding request for information with the party whose goods or services are advertised through an online messenger service in order to determine the respective advertiser or advertising distributor. Where it is impossible to detect the party in breach of the Federal Law on Advertising within a certain period, FAS may close the case.

Comment

Since FAS Letter АК/52901/19 represents the regulator's official position on this issue, it should be taken into account when promoting goods or services through instant messaging services.

Further, in order to mitigate the risks associated with non-compliance with the e-advertising requirements, parties which are planning advertising campaigns targeted at the Russian market should:

• examine and adapt their relevant e-advertising policies;
• review and revise their underlying contracts with advertising distributors; and
• request and obtain preliminary or opt-out consent from addressees.

Parties are also advised to monitor case law developments in this sphere.