Advertising in the Internet has been a matter of concern for market participants since September 2022, when the rules for keeping records of and labelling advertisements came into force1. The new rules were followed, in September 2023, by liability being introduced for a breach2. Moreover, the matter at issue now is not merely what the requirements are for advertising in the Internet, but the actual extensive practice of holding offenders liable for their failure to comply with these rules. We will examine what kind of approaches have already evolved.
There are two forms of risks: advertising online without the requisite identifier and labelling, as well as failing to submit or violating the procedure for submitting reports regarding advertising that is posted.
Two types of offences naturally stem from these risks.
1. Offences for which persons are held liable under administrative legislation by the Federal Service for Supervision of Communications, Information Technology and the Mass Media (known by the Russian abbreviation 'Roskomnadzor'), namely: advertising being placed without an identifier, along with the failure to submit or a breach of the procedure for submitting reports regarding advertising that has been posted.
Roskomnadzor imposed the first fine of RUB 300,000 in November 2023 on the owner of a Telegram channel that published three advertising posts without an identifier3.
Since 1 September 2023, more than 30 resolutions have been handed down to hold persons liable under administrative legislation for not providing advertising data on time or for providing irrelevant advertising data with the collected penalties amounting to RUB 2.1 billion. Moreover, 20 resolutions for the amount of RUB 1.4 million have been handed down for the absence of the identifier4.
2. Offences for which persons are held liable under administrative legislation by the Federal Antimonopoly Service, specifically: the absence of the label ‘advertising’ and of a reference to the advertiser and/or website or webpage containing information about the advertiser.
The antitrust regulator has a rather extensive practice in this category of cases. As a rule, the regulator identifies offences connected with advertising being placed on public webpages (publics) on social media, such as VKontakte or Odnoklassniki, and in group chats on such messenger platforms as Telegram and WhatsApp, as well as in YouTube channels.
The practice involving regulators examining cases on breaches of requirements for advertising in the Internet is extensive
One of the main questions for the regulator is whether content posted in the Internet constitutes advertising. For information to be recognised as advertising it must be in line with the characteristics listed in article 3 of Federal Law No. 38-FZ “On advertising” dated 13 March 2006 (the Law on Advertising). Experience has proven that, in order to identify whether or not these characteristics are present, the antitrust regulator, in each specific case:
Therefore, if the content falls under the definition of advertising, but does not bear any labelling or indication of the advertiser, the antitrust authority recognises this as a breach of article 18.1(16) of the Law on Advertising.
We note one approach to examining this category of cases.
Bearing in mind the principle that the law does not have retroactive effect, one may state that the advertising published in the Internet before 1 September 2022 (i.e. before the date when the labelling requirements came into force) is not subject to the provisions of article 18.1 of the Law on Advertising. However, as we know from experience, there are exceptions to this rule.
Example
In one case, the antitrust authority checked an advertising post placed in the social network VKontakte on 5 July 2022 for compliance with the labelling requirements. As there was no label, the regulator declared a breach. To support its position, the regulator stated that there was no proof of the advertising campaign in dispute being completed before 1 September 2022; consequently, the advertising was subject to the provisions of article 18.1 of the Law on Advertising (the Resolution of the Altai Territory Department of the Federal Antimonopoly Service dated 25 October 2023 in case No. 022/05/18.1-838/2023).
It is of no less interest who is held liable for committing such an offence. The answer may be received based on the example of non-labelled advertising posts being placed in publics (chats).
Example
If a post advertising a business entity is placed on behalf of the owner of the public, then the antitrust authority will recognise specifically the public's owner as the distributor of advertising and will hold such person liable under administrative law (the Resolution of the Nizhny Novgorod Department of the Federal Antimonopoly Service dated 25 October 2023 in case No. 052/05/18.1-2159/2023). If the post is published on behalf of a member of the public (chat) then such member is recognised both as the distributor of advertising, and as the advertiser. This person then will be the offender (the Ruling of the Altai Territory Department of the Federal Antimonopoly Service dated 17 April 2024 in case No. 022/05/18.1-431/2024).
On the whole, the practice of regulators examining cases on a breach of the requirements for advertising posted in the Internet is actively evolving and is already extensive. We believe the reason is that there remain many questions about how the provisions of the Law on Advertising should be implemented, especially about what should and should not be labelled.
See also
The video in which Elena Sokolovskaya speaks about the practice of courts and administrative bodies with respect to the labelling of advertising in the Internet: risks, liability for breaches, features of advertising, etc.
1. Federal Law No. 347-FZ “On amending the Federal Law ‘On advertising’” dated 2 July 2021 (the “Law on Advertising”).
2. Federal Law No. 274-FZ dated 24 June 2023 “On amendments to the Code of Administrative Offences of the Russian Federation”.
3. Roskomnadzor has imposed the first fine for a breach of the labelling requirements for advertising // RBC. 30 November 2023. / URL: https://www.rbc.ru/technology_and_media/30/11/2023/656733669a794740fd8a3188
4. In 2024 Roskomnadzor fined offenders under the Law on Advertising RUB 3.5 million // RG. 5 April 2024. / URL: https://rg.ru/2024/04/05/v-2024-godu-rkn-oshtrafoval-narushitelej-zakona-o-reklame-na-35-mln-rublej.html
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