ROMANIA. Written by Panagiotis Drakopoulos and Adrian Roseti, Drakopoulos Law Firm. Overview of the Media Law Framework and Relevant Bodies

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1 ROMANIA Written by Panagiotis Drakopoulos and Adrian Roseti, Drakopoulos Law Firm Having been an EU member state for over seven years, has reached a certain level of legal framework maturity from several perspectives, including media market regulation in relation to aspects ranging from television advertising, print and leaflets to online content and public campaigns. Adrian Roseti Panagiotis Drakopoulos Overview of the Media Law Framework and Relevant Bodies The n media law framework operates on two separate levels: the state regulatory and the self-regulatory. In relation to the state regulatory, it can be safely stated that the rule of law is comfortably implemented by setting clear advertising and media law principles, narrowed down to each type of advertising. This includes comparative or misleading advertising, unfair practices, competition, consumer protection etc., including reference to applicable rule, sanctions, as well as provisions dedicated to swift measures for having any content aligned with the scope of the law. The regulation of television advertising, which is under the most straight forward review and sanction based, is performed by the Audiovisual National Council (CNA). The function of the CNA is by virtue of the Audiovisual Act 504/2002 and defined as an independent public authority under parliamentary control and as guarantor of the public interest in audiovisual communication. Having at hand the control over any broadcasting and consisting of members with reputa- 238 M E D I A L A W I N T E R N A T I O N A L

2 ble experience in media, CNA can swiftly implement measures for stopping any airing. This can be done not only for reasons of public interest, but also in case the claims aired are not in accordance with the law, thus distorting the market and affecting competitors. From a self-regulatory perspective, several prestigious multinationals and important local players, including advertisers, advertisees and media, have set up the n Advertisement Council (RAC), which not only researches the legal framework and proposes new regulations, but also authorised to settle disputes between competitors in respect of media content by ensuring competition, consumers protection and the general public interest. The RAC members decide on whether content is compliant with a public self-regulatory code of practice and ethical norms, after consulting all parties involved and examining the evidence submitted, free of charge. Although RAC s decisions are only mandatory for its members, nowadays - due to the professionalism backing the decisions issued - several non-members request RAC s arbitrage in various cases and most of the decisions are being observed even by such non-members. As a result of this prodigious activity, CNA concluded a protocol with RAC whereby if a certain case brought before CNA requires sophisticated media and advertising review, CNA may request RAC s point of view. RAC issues its opinion only after consulting the parties involved in the dispute, and often RAC s opinion is taken per se by the CNA; therefore, the self regulatory status of RAC represents a very powerful presence for the players, even for RAC non-members. Aside from the above mentioned entities, Law no. 363/2007 on combating unfair trade practices, in relation to consumers and harmonisation of regulations with EU legislation on consumer protection, authorises the National Agency for the Protection of Consumers (ANPC) to act against unfair practices which includes advertising and media issues. In practice, although complaints are often related to engineered omissions/ mentions in claims or disclaimers, it is not only consumers who can lodge such complaints; this instrument is also available to competitors. ANPC has at hand a wide array of sanctions and measures to implement, including - but not limited to - ordering the stop of the unlawful practice, re-labeling products or adjusting media content, suspension of activity and the like. Complaints may also be filed on the basis of Law no. 158/2008 regarding misleading and comparative advertising, by both competitors and consumers, with the Ministry of Finance and, in the case of out-door advertising, local City Halls. New Regulatory Changes Affecting the Practice of Media Law One of the envisaged modifications of the laws currently in place is presented by the adoption of Government Order no. 2/2014 for the modification of the Health Reform Law no. 95/2006. Law no. 95/2006 requires all advertisements concerning OTCs and medical supple- 218

3 ments to be approved by the Ministry of Health before going on air. As per the recent amendment, all approved advertisements should be uploaded to the website of the Ministry of Health, so that consumers and competitors can verify that an advertisement they see on the market has been approved. Furthermore, as per draft Law no. 468/2012, advertisements of vitamins and other supplements would now have to be notified (and not preapproved, though) to the Ministry of Health, which reserves the right to take them down in case they are infringing the law, a prerogative which, to date, was reserved only for the National Food Authority. Recently the government also implemented measures with regard to media buying (Government Order no. 25/2013); until now media agencies were bundling up customer requests and negotiated with the media owners at their own discretion (without involving the advertisees), but the new regulation clearly specifies that the agreement relating to buying air time is not to be concluded anymore between the agencies and the media owners, but they should be concluded directly between the media owners and the advertisees, thus disclosing the prices used and giving more financial comfort and control to producers. Trends and Developments Both CNA and RAC, are continuously adopting measures in order to speed-up their proceedings and provide a reliable and equitable approach in issuing decisions on advertising disputes. This modern, up to date approach is better suited to address current media and marketing practices than other traditional proceedings in place. Recent legislative and case law developments have built a clear set of rules on which advertisers, advertisees and media can rely, resulting in a more regulated market, with the players being proactive in their approach before launching advertisements. This creates a reasonable degree of expectation of what the decisions/ sanctions would be in case of an infringement. For example, every claim used should be properly backed by relevant and conclusive independent tests, in case of medicines and/ or different products that contain chemicals (e.g. biocides), as was the case in the past. This general rule is now applicable to every product being advertised, together with other obligations, such as displaying specific and clear disclaimers, properly synchronising voice-over and image and readability from an average consumer perspective etc. Special attention is given also to compliance with the rules of grammar of the language in which communication is broadcasted; for instance, relying on a dedicated law regarding correct usage of n language, CNA s Decision no. 164/2013 sanctioned a televsion commercial that included wrongfully placed prepositions and irregular usage or verbs, thus sending a strong message in the market regarding the need for compliance from not only a technical, but also an educational perspective. Emphasis is also placed on the influence that leading public figures may have when they appear in commercials. 219

4 Decision no. 752/ issued by CNA confirmed that television commercial Supramax articulatii had been broadcasted in breach of the provisions of art, 126 (1) of the CNA s Decision no. 220/2011 regarding the regulation of the audiovisual content Code. As per the above-mentioned provisions, it is prohibited to broadcast advertising and teleshopping for drugs, medical treatments or supplement recommended by personalities of the public, cultural, scientific, sports life or by any other person, which, because of their celebrity, may encourage the use of such precuts or treatments. Considering that in this case the product was recommended by a public figure, CNA decided to take down the advertisement and ordered the producer and the television station to properly adjust its content. Another interesting example is a set of television commercials for Renault cars, where CNA decided that the disclaimer text was not compliant with applicable law, considering that the footnotes were written in very small print, hard to read, and the text stayed on the screen for a very short period of time, of only three seconds. As per the applicable law, in order to ensure correct communication, any information or disclaimer in a commercial should adhere to the following rules: a. it should be presented statically, viewable and for a sufficient length of time, for the videotext displayed information; the dimension of the characters must be of 17 point for SD format and 32 for HD format; b. it should be displayed for enough time considering a normal reading speed. One of the more sophisticated cases brought recently before RAC had to do with a television commercial broadcasted by Terapia-Ranbaxy as producers of Faringosept medication (an antiseptic OTC intended to relieve sore throat). The initial version of the commercial included claims such as does not have side effects, speeds up the healing process, and visual content such as the presentation of imagery of a gymnastics competition in a vintage-style presentation, thus referring to the famous achievements during the 70s, the golden era of the n national gymnastics team. In pursuit of the complaint and the legal and technical arguments pleaded before RAC on the grounds that such claims represented a breach of the RAC s advertising code, Health Code and CNA regulation. A decision was issued with consideration to the fact that such claims, as well as visual elements, were not in compliance with the regulations invoked, and an adjustment of the content was ordered. Conclusion It is evident that both the legal framework and regulatory/administrative bodies involved with respect to media are constantly evolving, making the market place a much more sophisticated environment for advertisers, advertisees and the media, in terms of having a precise, reliable set of rules in place when it comes to communication. 220 When media communication is found non-compliant, serious consequences may be incurred for the interested parties, with planned promotional or ad

5 vertising campaigns being disrupted and production costs increased for adjusting content etc. Market players need to be proactive when planning and designing their media communication, in order to ensure that their content is aligned with applicable laws and in order to avoid costs down the road for re-shooting, re-printing, re-labeling, etc, given the complications that may arise in case an advertisement is found in breach of the relevant provisions. Multinationals should pay even more attention in order not to rely on global productions of media content, which may be compliant in one jurisdiction, but not in another: what is in accordance with media law in France for example, is not necessarily compliant in. Local advice should therefore be sought in order to achieve proper localisation of content, not only language-wise, but also in terms of legal compliance. and Albania. He has over 20 years experience in prosecution and contentious work regarding various IP rights. Mr Drakopoulos represents foreign and domestic clients in a variety of IP matters and is regularly involved in large-scale cross-border deals involving intellectual property rights. Adrian Roseti is a partner in Drakopoulos Law Firm. He represents several domestic and multinational clients, in respect of all aspects of intellectual property law, including Media law and related dispute resolution, a domain where Drakopoulos Law Firm holds a leading position in the market with an impressive track record. Mr Roseti is also a contributor to various prestigious IP publications. Unfortunately, advertisees in are often still relying solely on the media agency compliance review, which is not always educated enough, or willing to explore all possible risks when screening content before going on air. As a matter of fact, advertisees, media agencies and the media should employ a more diligent stance when it comes to media law compliance with the help of legal experts in the field, in order to adjust to the new legal reality and avoid risk. BIOGRAPHIES Panagiotis Drakopoulos is the founder and senior partner of Drakopoulos Law Firm, a regional firm with fully fledged intellectual property practices in Greece, 221