On March 24, 2023, the State Administration for Market Regulation issued the Measures for the Management of Internet Advertising (hereinafter referred to as the Measures), which will come into force on May 1, 2023. At the same time, the Interim Measures for the Management of Internet Advertising promulgated by Decree No. 87 of the former State Administration for Industry and Commerce on July 4, 2016 shall be abolished. In order to help enterprises better understand the changes in the new Measures, Antion interpreted the main contents for related enterprise reference.
Adjusted the application scope of Internet advertising
The Measures made it clear that commercial advertisements that directly or indirectly promote commodities or services through Internet live streaming and other means shall be governed by it, and that corresponding participants of advertising activities shall bear the responsibilities and obligations of advertiser, advertising agent, advertising publisher and advertising spokesperson in accordance with laws.
Emphasized the prohibited advertising release for drugs, medical devices, health food and food for special medical purpose
The Measures stipulated that, "it is prohibited to make advertisements for medical treatment, drugs, medical devices, health food and food for special medical purpose by introducing health and health maintenance knowledge and other forms. When introducing health and health maintenance knowledge, the address, contact information, shopping links and other contents of commodity operators or service providers of related medical treatment, drugs, medical devices, health food and food for special medical purpose shall not appear on the same page or at the same time". The advertisement of drugs, medical devices, health food and formula food for special medical purposes can only be published after it has been reviewed and approved according to the Interim Measures for the Examination and Administration of Advertisements of Drugs, Medical Devices, Health Food and Food for Special Medical Purpose. In addition, the Measures further clarify that if the content of an advertisement that has been reviewed and approved needs to be changed, reapplication for advertisement review shall be made. It is suggested that enterprises adjust their advertising methods in time to avoid the above circumstances of violation.
Supplemented the specific circumstances where the word "advertisement" should be marked
In combination with the provisions of the Advertising Law, in addition to pay-per-click commodities or services, the Measures further added specific circumstances where the word "advertisement" should be marked, that is, advertisement publishers should clearly mark "advertisement" when promoting commodities or services by knowledge introduction, experience sharing, consumption evaluation and other forms, with purchase methods such as shopping links attached. This makes it easier for consumers to identify and for law enforcement to monitor advertisements.
Newly added four specific circumstances of "Prohibits"
Article 10 of the Measures added that when Internet advertisements are published in pop-up and other forms, advertisers and advertisement publishers shall clearly mark the closing sign to ensure that the advertisements are closed with one click, and the following circumstances are prohibited: (1) There is no closing sign or advertisement can be closed only when the time is up; (2) There are obstacles to the closing of advertisement, such as false, indistinct closing signs or closing signs difficult to locate; (3) Two or more clicks are required to close the advertisement; (4) Advertisement continues to pop up after being closed in the process of browsing the same page and document, which affects normal use of the network; (5) Other behaviors affecting the one-click close. Violators shall be punished in accordance with Paragraph 2 of Article 62 of the Advertising Law. Where an advertisement publisher commits the acts above, it shall be ordered to make corrections by the market regulatory authority at or above the county level, and if it refuses to make corrections, be imposed a fine of not less than 5,000 Yuan but not more than 30,000 Yuan.
Article 11 of the Measures added that it is prohibited to induce users to browse advertisements by false means which include: false system or software updates, error reporting and other prompts; false signs of play, pause, return, etc.; false promises of rewards, etc. Violators shall be ordered to make corrections by the market regulatory authority at or above the county level, and the advertiser, advertising agent and advertising publisher shall be imposed a fine of not less than 5,000 Yuan but not more than 30,000 Yuan.
Article 12 of the Measures added that it is prohibited to publish advertisements for medical treatment, drugs, health food, food for special medical purpose, medical devices, cosmetics, alcohol, beauty, and online games detrimental to the physical and mental health of minors on websites, web pages, Internet applications, WeChat public accounts and other Internet media targeted at minors. It manifests the focus of legislation on the healthy growth of minors in the digital economy.
Article 17 of the Measures added that "no pay-per-click advertisements shall be inserted into the search results of government service websites, web pages, Internet applications and WeChat public accounts". Violators shall be ordered to make corrections by the market regulatory authority at or above the county level, and the advertiser, advertising agent and advertising publisher shall be imposed a fine of not less than 5,000 Yuan but not more than 30,000 Yuan.
Improved the registration, review, archive management system of Internet advertising business
The Measures further improved the registration, review and archive management system of Internet advertising business, where it is stipulated that there should be an auditor familiar with advertising laws and regulations or an audit agency should be set up to ensure the legality and compliance of advertising.
In addition, in combination with the provisions of the Advertising Law, the Measures also made it clear that advertisers who publish Internet advertisement by themselves should establish the advertising archive and timely update it. The archives should be kept for no less than three years from the date of the end of advertising.
Newly added specific measures for targeted Internet advertising
According to the Measures, where an Internet advertisement is published by means of recommendation algorithm, the relevant rules of recommendation algorithm and the record of advertisement putting shall be recorded in the advertising archives, to provide the basis for regulating such advertising behavior, and to effectively address issues of targeted Internet advertising and customized advertising. Where an advertiser fails to establish advertising archive or to check the contents of an advertisement accordingly, it shall be ordered to make corrections by the market regulatory authority at or above the county level, and may be imposed a fine of not more than 50,000 Yuan.
Specified the audit requirements for advertisements containing links
The Measures stipulated that when Internet advertisements contain links, the advertiser, advertising agent and advertising publisher should check the content of advertisements in the next level of links related to front-end advertisements. Where an advertiser fails to check the content of advertisements, it shall be ordered to make corrections by the market regulatory authority at or above the county level, and may be imposed a fine of not more than 50,000 Yuan. However, "where there is evidence to prove that relevant responsibilities have been fulfilled, and that measures are taken to prevent the content of advertisements in the link from being tampered with, and the real name, address and contact information of the subject of illegal advertising activities are provided", that is, the platform has fulfilled its due diligence, lighter, mitigated or no administrative penalty may be given.
Strengthened the supervision of advertising spokespersons
While further refining the supervision measures on advertising spokespersons, the Measures also clarified the regulations on advertising spokespersons, laying a solid foundation for effectively regulating the advertising endorsement activities of famous performers, entertainment stars and Internet celebrities. During law enforcement, the Guidance of the State Administration for Market Regulation, the Office of the Central Cyberspace Affaires Commission, the Ministry of Culture and Tourism, National Radio and Television Administration, China Banking and Insurance Regulatory Commission, China Securities Regulatory Commission and China Film Administration on Further Regulating Advertising Endorsement Activities of Celebrities and other laws and regulations shall be also be considered, to further regulate advertising endorsement activities, maintain order of the advertising market and protect the legitimate rights and interests of consumers.
Conclusion
The Measures are revised and improved in accordance with the Advertising Law of the People's Republic of China, the E-commerce Law of the People's Republic of China, the Anti-unfair Competition Law of the People's Republic of China and other laws, which optimized and refined the code of conduct for Internet advertising and solved the practical problems that urgently need to be addressed in supervision and law enforcement. It is suggested that enterprises conduct self-inspection and earnestly fulfill the responsibilities and obligations mentioned in the Measures.
Source: Antion
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