10.06.07

Recently all mass media has been giving prominent coverage to the issue of political advertisement. The Federal Anti-Monopoly Service has decided to offer its own opinion on this matter.

According to Paragraph 2 of Article 19 of the Federal Law on Advertising, advertising structures (billboards, floor cases, banners, electronic displays, air-balloons and other technical means of stable distribution) must be used exclusively for the purpose of advertisement.

According to Paragraph 18 of Article 19 of the  Advertisement Law the failure to use advertising structures for the purpose of advertisement distribution will to the cancellation of permission for installation of structures by the local authority who has issued the permission.

Definition of the term "advertisement" is contained in Article 3 of the law, according to which "advertisement" is information, distributed by every way, in any form and by using any means, directed towards any number of unspecified persons, and used for drawing attention to the subject of the "advertisement", for forming or maintaining interest for the item or its market promotion.

For this purpose the subject of "advertisement" is defined as goods, means of its individualization, manufacturer or seller of goods, products of intellectual activity or event (including sporting event, concert, contest, festival, gambling, or bets), to which the advertisement is drawing attention.

Therefore the term "advertisement" includes only commercial information about marketed goods and related objects.

Since objects of political agitation cannot be considered marketed goods and are not connected to  the course of business activity, political advertising does not fall under the definition of advertisement employed in the Federal Advertisement Law.

Specified evaluation of regulations of the advertisement law allows FAS to draw a conclusion regarding the possibility of locating political advertisements on advertising structures because this decision will come into collision with the requirements of paragraph 2 of Article 19 of Advertisement law.

The FAS has presented a stated platform on this issue in response to the inquiry of the Central Election Committee.

At the same time prohibition for placement of political advertisement on advertising structures does not effect the ability for distribution of mentioned information by other means not considered advertising structures (including structures not registered as advertising structures: theatrical pillars, posters, information stands, etc.).

In the meantime FAS has drawn attention to the collision of the norms of electoral and advertisement legislation marked by the CEC which may lead to diversity in the approach of various local authorities to decisions regarding cancelling permission for installing advertising structures.

Under such conditions it is impossible to provide a uniform law-enforcement brief for local authorities on this matter, which, especially in an electoral period, may result in many court cases, which, based on Article 38 of the advertisement law, may be initiated by any person whose rights and interests are violated by advertisement non-conforming to requirements of advertisement legislation of the Russian Federation.

FAS has prepared a draft bill clarifying the regulations of Paragraph 2 of Article 12 of the Advertisement Law, which foresees the possibility of placing political advertising on advertising structures, to avoid any confusion during this electoral period.

A proposal regarding the solution to this issue has been forwarded to the President’s administration, RF Government, Central Election Committee of FAS.

Considering the significance of these proposed amendments, FAS hopes that it will be considered by the Federal Assembly of the RD during spring session of State Duma.

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