As requested, here are some comments on last Friday's roundtable discussion on China advertising law issues. A couple of general items first. This was a small group discussion that included several clients, some government officials, members of a quasi-governmental body, a PR professional, and several of my firm's lawyers. That's about as specific as I'll get on the attendees, although it should be noted that one of the clients is a sponsor of the Olympics.
OK, so here goes. After introductions by the moderator (my DLA Piper colleague Richard Wageman), the government guys, and the quasi-governmental reps, we got down to business. We originally intended to start off with a discussion on claims and standards, which is sort of the "meat and potatoes" of ad law. However, after one client immediately steered the discussion toward "green advertising," that topic sort of dominated our first period.
There seems to be some impatience with the lack of guidance on green advertising standards in China, although everyone recognized that this is all rather new, and it will take the government some time to formulate policies in this area. In the meantime, any claims that a company or product is "green," suggesting pro-environment tendencies, will be subject to the general requirements of accuracy of ad claims set forth in the Ad Law and regulations. It does not appear that the government is pushing to legislate in this area anytime soon, at least not from an advertising perspective. We had no participants from the environmental sector, so if there is any movement from that side, I wouldn't know about it.
We then moved on to a discussion of comparative advertising, which essentially refers to ads that include comparison between the advertiser's product or company and that of a competitor. Although China's Ad Law and regulations do not explicitly prohibit comparative advertising, restrictions on putting out materials that "degrade" a competitor are not allowed, and the regulatory interpretation of this makes it difficult to get away with a lot in this area. Some frustration at this approach was expressed, but there does not appear to be much happening on the legislative front here.
Next up was Ambush Marketing, a section that I chaired. This really sparked some lively discussions and anecdotes. One clear consensus from the group is that the practice of ambush marketing (in this context, a non-sponsor of the Olympics whose promotional activities suggest a connection with the Olympics where none exists) is quite successful – it simply works and will continue as long as loopholes remain in the law. We did not have time to discuss those loopholes in depth, although in my opinion, the Beijing Olympic Committee has done a great deal to shut down these activities, arguably acting outside its legal power on occasion and using political influence to shut down domestic ambush marketing activity. A lot of recent cases have been quietly settled out of court.
We wrapped up with a section on Internet advertising, which I also chaired. I wanted to steer things in the direction of privacy issues, a relatively new area of advertising law that I think will be really big here in the next few years as we see the passage of data privacy and online advertising laws (stay tuned for those in the future). I envisioned a lively talk about some of the new technology, such as the use of GPS data to tailor location-specific ads for mobile phone users. I think this went a bit too far for some of these guys, though, and the discussion quickly focused on what I consider to be "old" privacy issues, such as email spam. We did compromise to some extent, however, by also talking about SMS spam. There was an interest in enterprise liability and how personal data is "shared" with third parties over here – most folks seemed to think that major institutions (e.g. mobile phone companies, banks) were not at fault, but that their third-party service providers were handing out phone numbers and email addresses to anyone that would pay. Seems like we're definitely ready for a data privacy law.
Anyway, these were the high points. This was our first China ad law roundtable, and we are planning on having others in the future on specific topics (e.g. online ads, industry-specific advertising). If anyone has an interest in the above or has a question, let me know.