Current advertising regulation in the Czech Republic after (New) Civil Code’s force
This article summarizes current advertising regulation in the Czech Republic and focuses on its changes, introduced with (New Czech) Civil Code which came into force on 1. January 2014. Before 1. January 2014, one had to be aware of several special laws providing for advertising (understood as the process), advertisements (understood as the products of advertisers) and all the advertising channels used by the advertisers to attract the public audience (recipients). National public law regulation in general was set forth in the acts No. 40/1995 Coll., on advertising regulation, No. 143/2001 Coll., on the protection of the economic competition, and No. 634/1992 Sb., on consumer protection.
These three primary laws were eked out with business-specific restrictions for direct and indirect advertising in the e-commerce (Act No. 480/2004 Coll., on certain services of the information society, whereby unwanted business emails and electronic junk mail as e.g. newsletters and special offers were banned, provided the recipient has not opted in for them in advance), funeral services (Act No. 256/2001 Coll., on undertaking, whereby grossly abusive advertisement related to the funerals was prohibited), human organs and tissues procurement (Act No. 296/2008 Coll., which bans advertising of such procedures definitely).
Apart from public law regulation of advertising, distinctive private law protection of the competitors and consumers was introduced in the unfair competition legislation, as vested in the Czech Commercial Code (Act No. 513/1991 Coll. – universal complex code regulating business practice, business entities and contracts in the Czech Republic from the early 90’s). This legislation banned not only unfair competition as such (general clause), but also expressively its most frequent manifestations including the false advertisement, deceitful marking of goods and services, creating the risk of confusing the identity of goods, comparative advertising, defamation and disparagement, etc. (9 special clauses in total).
Czech national legislation has been wholly, yet rather unsystematically harmonized with relevant European directives, namely with the directives 2009/29/EC – Unfair Commercial Practices Directive, 2002/58/EC – Directive on privacy and electronic communications, 2006/114/EC concerning misleading and comparative advertising, and 2000/31/EC – Directive on electronic commerce.
On 1. January 2014, new Czech Civil Code (Act No. 89/2012 Coll., ‘CC’) came into operation in the Czech Republic, reshaping the “familiar bucolic landscape” of national civil law completely. One of its direct impacts is the cancellation of the Commercial Code (including its articles 44-54 stipulating the prohibition of whatsoever unfair competition and its advertising-related forms).
However, abovementioned change is – particularly in the area of advertising / unfair completion legislation – rather formal, as the CC (articles 2972 – 2990) provides almost the same level or protection as was applicable before. Literally the only perceivable difference between previous and currently applicable law is newly introduced clause (article 2986) on so-called “aggravating intrusion”, which covers all electronic forms of unwanted advertisement (via phone, fax, email, direct messaging, social networks, etc.), that are obviously intrusive and bothersome to the recipient, or such advertisement (of whatsoever form), in which the advertiser hides or obscures its identity or statutory identification or does not provide the mandatory information on how to forbid any future delivery of the advertisements.