Advertising is an integral part of every business and as such it is subject to many and various legal regulations depending on the sector and type of product.
Legal framework – Advertising in the Bulgarian law
The Bulgarian Protection of Competition Act (PCA) contains regulation on misleading and comparative advertising as a part of the Bulgarian unfair competition rules. PCA prohibits misleading advertising and lists the requirements which comparative advertising should meet in order to be permitted. In this regard PCA transposes Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertising (the “Misleading and Comparative Advertising Directive”).
PCA also provides for a legal definition of ‘advertising’ which is almost identical to the one under the Misleading and Comparative Advertising Directive. According to PCA ‘advertising’ is “the making of a representation in any form in connection with a trade, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations”.
When it comes to advertising and in particular its legal definition, however, one of the most fundamental and logical questions to ask is where the separation line between advertising and simple conveyance of information lies. The legal definition of ‘advertising’ in Bulgaria seems broad enough to cover a most various range of situations and yet one cannot deny that not every conveyance or communication of information represents ‘advertising’. This broad definition has been used by Bulgarian lawyers in numerous advertising cases.
Decision making practice of CPC
The Bulgarian Commission on Protection of Competition (CPC) interprets the legal definition of ‘advertising’ very broadly. This means that almost every piece of communication or information may be perceived as ‘advertising’ and legal consultants of advertising agencies in Bulgaria need to be very careful when advising on advertising campaigns in Bulgaria.
It is only very rarely that CPC has suggested that certain representations as an exception may not be caught as ‘advertising’ under the Bulgarian legal definition. For instance, the information contained on product labels and the description of products contained on internet websites (eg internet catalogues) do not possess the characteristics of ‘advertising’ for unfair competition purposes. This is well known to law firms in Bulgaria with expertise in the field of advertising.
It seems that CPC has drawn these exceptions not based on statutory legal provisions but rather based on its factual understanding of the concept of ‘advertising’. The assessment has been made on a case-by-case basis and in the context of the specific facts and circumstances. Thus it would be fair to say that any exceptions to the legal definition of ‘advertising’ might be relied on only provided they might be derived from CPC’s decision making practice.
Push and pull services and advertising in Bulgaria in Bulgaria
In light of the above mentioned, however, one aspect that might be worth considering relates to the possible differentiation between the so called push and pull services reflected in the field of medicinal products where direct-to-consumer advertising of medicinal products for human use subject to prescription is prohibited.
This is what the Court of Justice of the European Union has held on a reference for a preliminary ruling in Case C-316/09:
“45. Among the other relevant factors for determining whether the communication at issue in the main proceedings must be classified as advertising are, in the present case, the group of addressees and the technical characteristics of the media used in order to disseminate the information.
46. In that connection, it should be observed that, admittedly, according to the information provided by the order for reference, the information at issue in the main proceedings is accessible to everyone, since MSD did not decide to reserve access to it to certain groups of persons such as healthcare professionals.
47. However, that information is simply available on the manufacturer’s website, according to the system of ‘pull’ services, so that consulting it requires active research steps by the internet user and a person who is not interested in the medicinal product concerned will not be unwillingly confronted with that information. That means of communicating information with the assistance of a passive presentation platform is not, in principle, intrusive and does not impose itself unexpectedly on the general public, such a situation thus distinguishing itself from that of ‘push’ services, in which an internet user is confronted, without searching for it, with that kind of content by means of intrusive windows called ‘pop-ups’, which appear spontaneously on the screen, from which situation a strong presumption of advertising must, by contrast, be inferred.
48. Having regard to all of the foregoing, the answer to the question referred is that Article 88(1)(a) of Directive 2001/83 must be interpreted as meaning that it does not prohibit the dissemination on a website, by a pharmaceutical undertaking, of information relating to medicinal products available only on medical prescription, where that information is accessible on the website only to someone who seeks to obtain it and that dissemination consists solely in the faithful reproduction of the packaging of the medicinal product, in accordance with Article 62 of that directive, and in the literal and complete reproduction of the package leaflet or the summary of the product’s characteristics, which have been approved by the authorities with competence in relation to medicinal products. On the other hand, the dissemination, on such a website, of information relating to a medicinal product which has been selected or rewritten by the manufacturer, which can be explained only by an advertising purpose, is prohibited. It is for the referring court to determine whether and to what extent the activities at issue in the main proceedings constitute advertising within the meaning of that directive.”
Based on the above and aside from the specifics of the cited case (ie advertising of medicinal products) is it generally conceivable by advertising lawyers in Bulgaria to think that certain information that is placed on a corporate website that is not immediately available upon its opening or actively introduced to the user (eg by a pop-up window) but instead requires the user to specifically and actively search for it, does not meet the characteristics of ‘advertising’? Analogy may be drawn to physical libraries where users need to actively search for a book in order to reach the information contained in it. In the same way corporate entities may place information of their products on their corporate websites that formally may be considered as “representation in any form in connection with a trade, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations”. However, does it suffice to qualify such information as ‘advertising’ if users are to actively search for it in order to find it?
The Bulgarian CPC has already had the chance to point out in one of its very recent decisions that ‘advertising’ represents ‘active information’. Conversely, does this mean that information that is not ‘active’, ie it is ‘passive’ because it needs to be actively pulled/searched for by users, does not represent ‘advertising’ for unfair competition purposes? The answer to that question, so important to Bulgarian advertising law, still waits.