Latest Unfolding Trends in Malta’s Advertising and Marketing Law 2023

6 November 2023

Introduction

In the ever-changing realm of global advertising and marketing, businesses aiming to tap into the Maltese market must navigate its complex legal terrain. Advertising and marketing in Malta are not regulated by a solitary legislative framework; instead, they are subject to a multifaceted web of diverse and interlinking legislation, regulations, and guidelines.

These regulations vary depending on factors such as the advertising medium, the subject matter, and the target audience. This legislative complexity poses a challenge, reflecting the industry’s expansion in an increasingly interconnected global arena. It highlights the diverse nature of the advertising and marketing sector, while emphasising the need for tailored approaches in an evolving landscape.

Against this backdrop, various legal amendments highlight notable market issues vital for clients aiming to operate within the Maltese jurisdiction. Recent noteworthy considerations include legal developments in the global digital sector, potential deceptive marketing practices, and the ongoing need to protect consumers in a growing market.

Digital Advertisement and Marketing

In the midst of a global digital revolution, the advertising and marketing industry is undergoing a significant transformation. Clients now have an array of advertising and marketing tools, from social media and influencer campaigns to e-commerce platforms. Simultaneously, consumers find themselves continuously exposed to a wide range of advertisements across multiple digital channels.

In Malta, it is important to note that online advertising is not governed by a specific legal framework. Instead, it falls under a complex array of regulations including the Consumer Affairs Act, the Electronic Commerce Act, and various Data Protection regulations at both local and EU levels, among other associated and subsidiary legislation. These instruments are not designed to restrict or censor online content; instead, their primary aim is to protect consumer interests, ensure transparency and provide consumers with the information they need to make informed decisions, while safeguarding consumer data, forming the foundation of data protection and privacy rights in the digital realm.

As a result, the emphasis of such legislation is less on prescribing what can appear online and more on enhancing consumer protection within the digital sphere. This provides the advertising and marketing sector with a vast scope for message delivery, audience engagement, and the crafting of meaningful brand experiences.

Navigating the intricate intersection between consumer protection and industry requirements demands a nuanced understanding of current regulatory frameworks, consumer expectations, and the innovative opportunities presented by digital platforms. A holistic understanding of these elements allows businesses to not only leverage the transformative power of the digital revolution but also foster a digital ecosystem that prioritises both innovation and ethical consumer engagement.

Marketing Tools

Deceptive Advertising

In late 2022, the Consumer Affairs Act underwent substantial amendments to tackle deceptive advertising and associated dark patterns. These changes were a response to the evolving advertising landscape, ensuring it stays relevant to contemporary mediums and scenarios. The underlying goal was to provide consumers with enough clear information to allow them to make informed decisions prior to purchase.

The need for such transparency resulted in broad and explicit regulations designed to explicitly prohibit traders from engaging in misleading forms of advertisement, including both overt acts of making false claims and subtler acts of omission or withholding vital information. This framework extends across all forms of advertising and marketing, including all business-to-consumer transactions, whether online or offline, and across all communication channels that promote products or services.

The ban on misleading claims is technology-neutral and applies regardless of the channel, medium or device used to carry out the business-to-consumer commercial practice. As such, the regulations are applicable to, but not limited to, media advertising such as radio and TV, print advertising, and digital advertising, which includes websites and social media platforms. It also covers claims made by manufacturers, distributors, wholesalers and retailers.

The changes to the Consumer Affairs Act also include the introduction of a form of blacklist of commercial practices that are deemed fundamentally misleading, providing for a definitive guide of prohibited conduct.

These legislative amendments are of such importance that they have been extended directly to the Commercial Code, the cornerstone of commercial law in Malta. Consequently, these rules hold specific implications for traders, even in relation to dealings with other traders, who carry out misleading advertising such as any comparative advertising that is contrary to the provisions of the law.

Although comparative advertising is permissible in Malta, it is highly regulated and restricted; as such, when carrying out such form of advertising, unless properly guided, advertisers and marketers using such practices risk facing various forms of liability. Offenders could face administrative penalties from the relevant authorities, civil litigation from the injured party if they have suffered damages caused by such practices, and possible criminal liability in relation to severe breaches of intellectual property.

Deceptive Advertising

Protection from Harmful and Offensive Advertising in an Evolving Society

In Malta, the regulation of harmful and offensive advertising is stringent, particularly in the context of radio, television, and any audiovisual material accessible via electronic communications networks and services. The Broadcasting Act imposes specific restrictions against advertisements that could undermine human dignity, promote discrimination, or encourage conduct harmful to health or the environment.

The Broadcasting Act also provides for a comprehensive ban on audiovisual commercial communications that could be detrimental to minors in any physical, mental, or moral capacity. It outlines a range of restrictive measures designed to protect minors’ well-being and interests.

Responsible advertising practices, especially when targeted at minors, require careful consideration. Particularly harmful content, such as gratuitous violence and pornography, is subject to the strictest measures. As a general rule, advertisements should not contain material that is unsuitable for minors, including explicit or violent content, offensive language, or explicit sexual imagery.

In Malta, the regulatory landscape extends beyond general consumer protection to include sector-specific restrictions, particularly for products like tobacco, alcohol, and medicine. Each of these sectors is governed by its own unique set of frameworks, with important implications for advertising and marketing.

For instance, the advertising of tobacco and related products is broadly prohibited in Malta. The only exception allows for images of cigarettes or similar products to be displayed on vending machines for the sole purpose of product selection. Even in this limited context, a health warning must accompany any such depiction.

When it comes to alcohol advertising, while it is permitted, it is heavily regulated with the primary aim of protecting minors from undue influence. Guidelines specify time periods during which alcohol advertising is allowed. Further measures designed to safeguard minors include restrictions on certain types of advertisements, safety considerations, and even stipulations concerning the use of humour in advertising so as not to contravene the previously mentioned guidelines.

In Malta, the advertising of medical products and services is subject to rigorous and intricate regulations. At a general level, all advertisements must promote rational use of the product, include all legally required particulars, and must not be misleading. Furthermore, any medicinal product advertised must possess a valid authorisation for distribution within the Maltese market.

While advertising over-the-counter medicines is allowed, marketing prescription-only medications or those containing substances classified as psychotropic or narcotic under Maltese law is prohibited. It is worth noting that the laws can differ significantly depending on the type of medicinal product in question. Medical professionals, including doctors, surgeons and dentists, are generally barred from providing testimonials or endorsements in advertisements and are expected to adhere to strict ethical standards.

In relation to sectors such as adult services and cannabis, recent amendments to Maltese law have also been made. Adult and sex-related services are not explicitly regulated by advertising-specific laws; instead, amendments to existing laws related to advertising, consumer affairs, and criminal legislation indirectly govern this area. The goal is to safeguard public morals and protect minors. For example, the Criminal Code restricts the display of pornographic material in public spaces. Adult establishments, such as sex shops, must display age-restriction warnings outside their premises without using explicit imagery, limiting the ways they can advertise their products and services to the public.

Regarding cannabis, its use in Malta has been legalised to some extent, covering both medical and recreational purposes. This legalisation comes with stringent regulations aimed at mitigating the potential societal harm arising from cannabis use. Consequently, there are explicit regulations that strictly forbid the direct or indirect promotion, encouragement, or stimulation of cannabis use. Generally speaking, advertising cannabis in Malta is not permitted.

Conclusion

Navigating the complex landscape of advertising and marketing in Malta demands an in-depth understanding of the latest trends and developments within the field of advertising. This overview serves as a snapshot of this ever-changing landscape, influenced by various cultural, political, and socio-economic factors, both locally and globally. With proper guidance and a thorough grasp of the legal complexities, businesses can devise effective advertising and marketing strategies that resonate with the Maltese audience, ensuring successful market entry and sustained growth within this vibrant jurisdiction.

Key Contacts

Kris Scicluna Director, AE Business Advisors

Kris Scicluna

kscicluna@ae.com.mt

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