The European Parliament has published a report calling on the European Commission to introduce new consumer legislation to address a number of modern advertising techniques. Among the advertising techniques the Parliament wishes to address are:

1. Google AdWords: As covered in our previous articles, this is one of the most contentious areas in trade mark law at the moment as it allows companies to bid for keywords associated with brand names which may be owned by their competitors. The European Court of Justice has upheld this practice so long as the associated ads do not mislead as to the identity of the company advertising. The Parliament is seeking to halt this practice and provide that the owner of the trade mark must consent to the sale of the advertising keyword.  This coincides with an antitrust investigation of Google that has been started by the EU Commission.
2. Targeted Advertising: The Parliament also voiced its concerns over the use of behavioural advertising and the development of what it considers to be inappropriate advertising practices (such as reading the content of emails, using social networks and geolocation, and retargeted advertising). The report states that personalised advertising is not in itself a problem, however it must not be allowed to develop into intrusive advertising based on consumer tracking.
3. Hidden forms of advertising: The report suggests that forum observers/moderators may be required to monitor advertising through forum comments. The report gives the example of sites such as TripAdvisor which allow users to post comments about products and services. The Parliament acknowledges that such comments may be susceptible to misleading advertising and should be addressed in any future legislation.
4. Use of Bluetooth technology: The Parliament also proposes prohibiting the indiscriminate sending of unsolicited advertising to mobile phones by means of Bluetooth technology without prior consent. This is an increasingly common form of advertising for shops and shopping centres and the Office of the Data Protection Commissioner (ODPC) has also recently looked at this issue.

The ODPC issued a guidance note on the use of Bluetooth for direct marketing purposes and stated that while there were currently no specific legal requirements in relation to the actual transmission of such messages, best practice should be followed in this area. This may include, for example, having a designated Bluetooth zone in a shop which a customer would have to walk through before receiving a message.

The report is due to be debated and voted on by the Parliament during December and its progress through the various European institutions will be of interest to those who advertise through the internet.

For further information please contact David Cullen or Leo Moore of our Technology department.