75522 - Commercial Communication Law

Learning outcomes

At the end of the course the students will be able to understand the adversting and marketing regulations applicable at the national and international level; they will be able to identify the relevant courts and sector-specific authorities, which can be seized against national and trans-national misleading, hidden or unfair advertising; they will be able to use this knowledge to plan information and marketing strategies.

Course contents

Introduction to the Law of Commercial Communication

1.1 Communication as a freedom and as a juridical relationship. 1.2 Commercial communication and its evolution. 1.3 The sources of commercial communication law: legislation, self-regulation, and co-regulation. 1.4 Individual and collective interests and the remedies provided under the legal framework governing commercial communication. 1.5 Self-regulation of commercial communication, codes of conduct, and corporate social responsibility.

2. The Institutions of Self-Regulation in Commercial Communication and the Relations between Legal Orders

2.1 Admissibility and limits of State control over the decisions of the Jury: the Motta/Alemagna advertising war of the 1950s and 1960s; the 1960s debate on hidden persuaders; 1966: the birth of advertising self-regulation. 2.2 State recognition of the self-regulation of commercial communication by the courts: the 1976 “Curcio/F.lli Fabbri Editori” case; the 1998 “kitchen paper – tray test” case; the 1999 Replay case; the orientation of the Court of Cassation and lower courts from 2004 onwards: the “Nappies – 1” case; the “Nappies – 2” case; the “Sunscreens – 1” case; the “Sunscreens – 2” case; dissenting decisions: the “Lambertucci case”; the “Salaparuta case”. 2.3 State recognition of the self-regulation of commercial communication by national and EU legislators: misleading and comparative advertising; medicinal products for human and veterinary use; subsidies to publishing companies; television broadcasting and minors; alcohol and related problems; games with cash prizes; protocols and agreements between the IAP and institutions; co-regulatory phenomena.

3. The Legal Nature and Organisation of the IAP and the Self-Regulatory Procedure

3.1 From the ICC models to the IAP Code. 3.2 The legal nature of advertising self-regulation. 3.3 The protected interests. 3.4 Subjective and objective limits to the application of self-regulatory rules and decisions. 3.5 Self-regulatory bodies and their competences. 3.6 The self-regulatory sanction. 3.7 Certain criteria for interpreting the Self-Regulatory Code. 3.8 Online commercial communication and the IAP Digital Chart. 3.9 EASA – European Advertising Standards Alliance. 3.10 ICAS – International Council for Advertising Self-Regulation and EDAA – European Interactive Digital Advertising Alliance. 3.11 The Cross-Border Complaints System.

4. The Protection of Citizens

4.1 Fairness and loyalty in commercial communication, Article 1 of the Self-Regulatory Code. 4.2 Nationalist advertising. 4.3 The proper handling of the target audience’s emotions and the reference to values of ethical and social conscience, Articles 1.1, 8, 9, 10, 11, and 12-bis of the Self-Regulatory Code: the advertising use of sexual symbols, nudity, the theme of transgression, advertising for gaming and betting, and invitations to occultism. 4.4 The discrediting of advertising as a market institution: advertising cynicism and shock advertising; the advertising exploitation of themes such as drug addiction, illness, disability, and death; Benetton advertising in the 1990s. 4.5 Fairness under Articles 1, 10, and 13 of the Self-Regulatory Code: the advertising use of State symbols, religious symbols, and the reputation of others.

5. Consumer Protection

5.1 The prohibition of misleadingness, Article 2 of the Self-Regulatory Code. 5.2 The misleadingness test: self-sufficiency of the message, initial attraction and corrections; misleading omissions; ambiguity; dangerous omissions, Article 12-bis of the Self-Regulatory Code; reversal of the burden of proof, Article 6 of the Self-Regulatory Code. 5.3 Protected subjects: from the marginal consumer to the average consumer. The follower-consumer. 5.4 The object of the misleadingness test: the characteristics and effects of the product; claims of uniqueness, primacy, and excellence; claims of novelty; “free-from” claims. 5.5 Claims of “freshness”. 5.6 “Made in” claims. 5.7 Environmental advertising and greenwashing, Article 12 of the Self-Regulatory Code. 5.8 Price and conditions of sale. 5.9 Awards and recognitions. 5.10 Hyperbole. 5.11 The principle of truthfulness and specific aspects of commercial communication. 5.11.1 Article 3 of the Self-Regulatory Code: quotations, technical and scientific tests, statistical data. 5.11.2 Article 4 of the Self-Regulatory Code: testimonials. 5.11.3 Article 5: guarantees. 5.12 The principle of truthfulness and sales systems, Articles 17–21 of the Self-Regulatory Code. 5.13 The principle of truthfulness and product sectors, Articles 22–28-ter of the Self-Regulatory Code: alcoholic beverages, cosmetics and personal hygiene products, food supplements and dietary products, physical and aesthetic treatments, medicinal products and therapeutic treatments, educational courses and study or teaching methods, financial and real-estate transactions, package travel, toys, games and educational products for children, and games with cash prizes.

6. Transparency in Commercial Communication

6.1 The sources of the duty of transparency. 6.2 Usage recommendations and undisclosed sponsorship. 6.3 The use of apparently neutral testimonials, such as journalists and independent experts, in the context of display advertising: the problem of the infomercial. 6.4 Indicators and presumptions used in the case law of the Jury to identify covert advertising. 6.5 Attribution of covert advertising: from the commissioning relationship to the material connection. 6.6 The recognisability of commercial communication. 6.7 Covert advertising online. 6.8 Influencer marketing. 6.9 United States legislation and the regulation of endorsement. 6.10 The experience of the United Kingdom. 6.11 The regulation of content marketing in Italy. 6.12 The application of the Consumer Code, the IAP Code, and the AGCOM Code. 6.13 Native advertising.

7. The Protection of Undertakings

7.1 Imitation, confusion, and exploitation of reputation, Article 13 of the Self-Regulatory Code. 7.2 The problem of ambush marketing. 7.3 Keyword advertising. 7.4 Denigration, Article 14 of the Self-Regulatory Code. 7.5 Comparison, Article 15 of the Self-Regulatory Code. 7.6 The problem of suggestive comparison.

8. Advertising Contracts

8.1 The advertising agency contract. 8.2 The advertising dissemination contract. 8.3 The advertising concession contract. 8.4 The contract for the commissioning of an advertising work. 8.5 Contracts for the use of another person’s image. 8.6 Sponsorship contracts. 8.7 Contracts with advertising network providers.

9. Digital Advertising

9.1 Profiling and targeted advertising. 9.2 The relevant regulatory sources concerning digital advertising: Article 22 GDPR on profiling and automated processing; Directive 2002/58/EC, the e-Privacy Directive; the new transparency obligations provided for by the DSA, Articles 27, 38, and 39; Directive (EU) 2019/2161, Article 7 and Annex I; Regulation (EU) 2019/1150, Article 5; and the DMA, Article 5; the limits on profiled advertising laid down by the DSA, Articles 26 and 28; the new information obligations under Directive (EU) 2019/2161, Article 6; the new obligations and prohibitions imposed on gatekeeper platforms, Articles 5 and 6 DMA. 9.3 The digital advertising market: the automated auction system of real-time bidding. 9.4 Behavioural advertising based on the monitoring of users’ online activity.

 

Readings/Bibliography

Mandatory textbook and materials:

- C. ALVISI e V. GUGGINO (editors),  Autodisciplina pubblicitaria. La soft law della pubblicità italiana, Giappichelli editore, Torino, 2020

- materials included into the course syllabus accessible on the Virtuale platform.

Recommended textbook for further researchs:

- C. BERTI. Il diritto privato nella comunicazione d'impresa, Bonomo editore, Bologna, 2026, pp. 1-301.

Teaching methods

The course will be mainly delivered through in-person lectures.

Case-law and academic essays will be uploaded on Virtuale immediately before or after the lectures and workshops, to let the students to have prompt access to the materials focused during each lecture.

During the course the students, working in several  groups, will be required to arrange guided mock-up presentations concerning advertisements and ad campaigns already assessed by the Jury or other relevant courts.

Specialist seminars on selected topics may be organised, including with the participation of experts; students will be informed during the course and through notices published on the lecturer’s webpage.

 

Assessment methods

Students skills will be assessed both during the classes, through in-class simulations, and at the end of the course via a written test consisting of multiple-choice questions.

The written test will consist of 31 questions. One point will be awarded for each correct answer. There are no penalties for incorrect or omitted answers (0 points). The maximum score achievable by answering all questions correctly is therefore 30/30 with honors.

The test is considered passed with a minimum score of 18/30.

A maximum time of 40 minutes will be allowed for the test.

Any points earned from group work (simulations) in class may be added to the test score, but only if the exam is taken during the session immediately following the end of the course.

Students who wish to refuse the grade they have got in passing the exam (i.e. grade 18 or above) and reseat will be allowed to do so only once.

Students with SLDs or temporary or permanent disabilities are advised to contact the competent University office in good time (https://site.unibo.it/studenti-con-disabilita-e-dsa/it ). That office will propose any appropriate adjustments to the students concerned; such adjustments must in any case be submitted to the lecturer for approval at least 15 days in advance. The lecturer will assess their suitability also in relation to the learning objectives of the course.

 

Teaching tools

syllabus, slides, materials uploaded on the professor's IOL web-site, web-resources, projector.

Office hours

See the website of Chiara Alvisi