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JUSTICE : ECJ DEFINES SURREPTITIOUS ADVERTISING.

Payment is not a necessary condition for defining surreptitious advertising, the Court of Justice of the European Union concluded, on 9 June (Case C-52/10). It explains that such a connection "could undermine the protection of the interest of television viewers [...] and could deprive the prohibition of surreptitious advertising of its effectiveness". The court stated the need for a "uniform interpretation and application of EU law" to be applied in light of national laws and "versions existing in the other official languages".

In order to protect the rights and interests of television viewers, the Council adopted the Television Without Frontiers Directive, in 1989, which explained that any form of advertisement that "is intended by the broadcaster to serve advertising and might mislead the public as to its nature" was surreptitious and legally banned in the European Communities.

In 2003, the Greek National Council for Radio and Television (Ethniko Simvoulio Radiotileorasis, ESR) imposed a fine of 25,000 on Eleftheri tileorasi SA (Alter Channel), its chairman and managing director for the use of surreptitious advertising in a 2003 advertisement showing cosmetic dental treatment. However, Eleftheri tileorasi argued that in the Greek version of the provision of the directive, there is no indication of payment connected with surreptitious advertising. Therefore, the State Council of Greece asked the court to interpret the meaning that "the provision of payment or of consideration of another kind is not a necessary condition for establishing the element of intent in surreptitious advertising".

The court's ruling indicated that minimum rules and standards in the directive are necessary in order to protect the interests of television viewers. The court's new judgement clarified that any intentional misled information broadcasted on television will be considered surreptitious advertising.

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Publication:European Report
Date:Jun 10, 2011
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