4
possible for everyone to let a number almost unlimited of addressee know its offer of products or
services. Consequently, the need to do so that the information is correct and fair can’t be
disregarded and must instead constitute the main worry of who does advertising and of who must
delineate the legal discipline of it.
2. Legal concept of advertising
In Italy, the first legal definition of advertising there was only with the issuing of the
legislative decree of January , the 25
th
, 1992, n°74, which, on the 2
nd
art. defines it as “whatever
form of message that is spread, in every way, during a commercial, industrial, handcraft o
professional activity, with the finality of promoting the selling of mobile goods or real estates, the
constitution or the translation of right and duties on them or the giving of goods or services.”
2
Previously, the law of 6 August 1990, n.223, established a discipline quite detailed about
advertising, limiting itself to the Radio – TV sector; it was significant, but it didn’t give the right
attention to the definition of the phenomenon of advertising
3
.
Out of National law it’s important to remember the definition, contained in the Code of Self-
regulation of advertising, the first edition of which goes back to 1966; even if it’s a private system,
its relevancy is without doubt, ought to the fact that, since the beginning, important organisations
and associations of the sector joined the institute of self-regulation of advertising and, therefore,
National law in many aspects is influenced by this authoritative font. Well, advertising is defined
here as “every communication, also institutional, directed to promote the selling of goods and
services, whatever are the media used for it, and also the forms of communications disciplined by
title VI”, that is “every message with the purpose to recall the public subjects of social interest, even
specific, or that urges on, directly or not, the voluntary contribution of every nature, finalised to
reach objectives with a social character.” Of extreme interest results, in so wide definition, the
mention to the social advertising, or to a form that doesn’t follow directly the aim to increase the
2
This legislative decree constitutes the actuation in the Italian law of the Directive 84/450/EEC, that at the second art.
defines Advertising as “whatever form of message that is spread, in every way, during a commercial, industrial, craft o
professional activity, with the finality of promoting the selling of goods and services, including real estates, rights and
duties”. This normative act can’t be considered immediately effective in the internal rules, if we consider the principles
that are at the basis of Community Law; consequently, the first definition by the law has to be considered, to all the
effects, the one in the Decree 74/92.
3
This law actuates, in the Italian system, the Directory n.89/552/EEC; this Directory defined Advertising (on TV) as
“every form of message on TV transmitted after a payment by a public o private enterprise in the contest of a
commercial, industrial, craft activity or a free job, to promote the supplying, after payment, of gods or services,
included real estate, rights and obligations”. It’s interesting to find the reference to the payment, which is an element
that lacks in the legislative Decree n. 74/92.
5
selling of goods or services, but aims to promote the image of the firm globally, without the
reference to specific products or services. It’s useful to underline also the mention to social
advertising; it has to be remembered, in fact, that the CAP doesn’t limit its range of action to
commercial deceptive advertising, but protects a more wide net of interests and values, not
regarding only the economic world. Just for information, it can be useful to remember the wide
definitions of advertising, quoted in some collections of advertising uses, realised by some
Chambers of Commerce, in particular, the Official collection of advertising Uses, edited by the
Chambers of Commerce of Milan Province in 1988, defines as advertising “every form of message
that is diffused during a commercial, industrial, craft or professional activity, with the aim to
promote the ask of goods and services”.
6
3. Constitutional references
It’s an essential need to find the constitutional foundations to which refer to protect
advertising, intended as legal human activity, and its addressee; here it’s talked about the interests
of the producers-commercial operators and of those of customers.
4
About the first profile, we can
say that, at an exam of Fundamental Chart, two articles can be called abstractly to safeguard the
freedom to make advertising activity: the art. n. 21, about freedom of expression
5
and the art. n. 41
that disciplines the freedom of economic initiative
6
. These aren’t purely theoretic considerations,
because the consequences of the application of one or of the other article are extremely different.
Nevertheless, the limitations that can be fixed to the economic activity, to protect relevant social
interests, could not be tolerated if we moved into the expression of thought, because they would be
very incompatible, before all with the art. 21 const. and with the general principles on which our
democratic system is founded. Therefore, we must understand if communication of a firm,
characterised by finalities of profit, is worth of the same protection than the one to which a message
of a lato sensu cultural nature can legally aspire. The most part of doctrine excludes that this could
be possible
7
, supported on this by strong positions of Constitutional Court
8
; the Board has, in fact,
declared that freedom to manifesting the thought, object of constitutional defence, has to be
intended as limited to communications of culture, opinion, and information. If, under a juridical
profile, we had to consider only the position of the addressee of the information, there wouldn’t be
doubt on the fact that the attention to give to this last one should be the same, either in case of
commercial or in case of cultural communications, to always guarantee the highest level possible of
security. Really, also the way of the author of the communication to put himself in relation with the
4
It’s not possible to think about Advertising as an instrument without utility for the consumers and with the unique
purpose to maniple their actions; such would be the result of incorrect Advertising or the collateral effect of messages,
for a large part rightful but with a not proportionate suggestive effect. In reality, it has a social appreciable function,
even necessary, by the moment in which puts in contact the producers and the public and let this one know the
possibilities offered by the market to satisfy the most various needs.
5
The first two commas of the article tell: “Everybody has the right to freely manifest their thought with words, with
writing and with every other way of diffusion. The press can’t be submitted to authorisations or be censored.”
6
“The private economic initiative is free. It can’t be done in contrast with social utility or in a way to cause damage to
security, freedom, human dignity. The law establishes the suitable programs and controls for public and private
economic activity to be addressed and co-ordinated to social finalities”.
7
FLORIDIA (The repression of misleading Advertising: 20 years later, Q, 1986, p. 74) adopts a point of view
syncretistic, because it says that Commercials are in the sphere of art. 21 Const., but, at the same time, it can be limited
by art. 41, 2° and 3° Const.
8
Const. Court, 12/07/1968, n. 68, in Giur. cost. 1965, 838. In the sentence 12/07/1968, n. 68, in Giur. cost. 1965, 838, is
stated that “the net distinction between the manifestations of thought of which, in predict limits, is stated the freedom,
on one hand, and commercials, of which is underlined the nature of font of financing of information organs, on the
other, indicates in a syncretistic way that this last one is considered a component of the activity of the enterprises,
assisted by the guarantees of the art. 41 Cost. and to be subjected at the hypothesis predicted in the 2° and 3° comma.
7
addressee has a fundamental relevancy. In fact, it’s a matter of relationship among different spheres
of interests.
Well, when the author’s purpose is commercial, the natural consequence is that the addressee
has given more protection, because he’s considered the weaker part, and this justifies the limitations
to the expressive freedom of the one who communicates. Instead, if there aren’t purposes of
lucrative nature, both positions of communicative relationship become totally equal and, so, there
aren’t reasons to not ensure a contextual realisation of both interests, that are the one of freely
expressing and the other of receiving information.
A particular case is an enterprise doing an activity of diffusion of thought, hypothesis in
which has to be ensured an ideal balance among opposite interests. About this matter, the
Constitutional Court pronounced, remembering that “in the subject now considered, the business
organisation has only an instrumental position respect to the development of the activity of
spreading the thought through radio – TV media, so that, as can’t be justified the boundaries to the
enterprises that are such to fall on the radio-TV diffusion activity, with effects of unreasonable
reduction of freedom protected by the art.21 of Constitution, at the same way are totally justified
more rigorous boundaries to enterprises acting in the sector of radio – TV”
9
. That means, if
communication is done by an enterprise, it will be surely applicable the art. 41 Const (to the
modalities of diffusion and presentation of message, obviously not to the contents) even if the
object of the communication itself is about information that can be included in the sphere of art.21
Const.
On its side, the Court of “Cassation”
10
has remembered that “advertising can’t be considered
as a manifestation of thought, intended as expression of ideas and opinions, but a mean of invitation
to buy industrial products, ad has, so, targets of commercial nature. Diffusing moral or scientific
concepts or political opinions, which are proper of manifestations of thought, it is considered
different from advertising.”
9 Sentence 112 of 24-26/03/1993, in G.U. 31/03/1993, 42.
10 In Mass. Cass. Pe. n. 1974, 82.
Court of “Cassation” is the one that gives the last and definitive sentence about a process, after the two Courts of
Appeal. (N.D.T.)
8
4. Interests to protect
As it results evident, for this subject it’s necessary to realise a mediation of the interests in
conflict; if, in fact, isn’t possible to let the consumer to uncontrolled fluxes of messages, it has to be
in the same way deplored the reduction of the operative margins of Advertisers in so narrow
boundaries to prevent in concrete their, certainly, correct activity. It’s not a case that in the actual
norms having as object advertising are properly considered, beside the interests of publicists nature,
with the protection given to consumers, others of private matrix , with reference to competitors, the
honest advertising activity of which receives in that way an indirect ratification. We can’t deny that
the crescent attention of the lawmaker is owed to the weaker part of the relationship that is the
consumer; nonetheless, also competitors are object of attention about their needs of protection from
the improper actions of the other actors of market. We don’t have to forget that, when in Italy didn’t
use to exist a specific law about deceptive advertising, the doctrine and the study of law found the
first remedies just interpreting the norms of the Civil Code dedicated to the repression of unfair
Competition
11
, making evident the strict link that exists between the correct functioning of market
and the protection of final consumers, and assuring to these last a defence at least by reflection.
In the economic competition, the enterprises must, obviously, make so that their own products
or services meet the favour of the public and adopt, so, the best strategies to obtain such a result to
detriment of competitors; advertising enters, naturally, among the most suitable instruments to
reach this goal. Competition can’t, of course, take place in a savage way and must respect the
limitation deriving from economic freedom of someone else; the ancient illusions, owing to which
the system of free-competition is able to self-protect from the anti-competition deviations, have
been definitely abandoned and the proof is given really by the adoption of laws finalised to restrain
the phenomenon of disloyal competition.
Even the Italian Civil Code of 1942 contains a specific title, the X, inside the book V,
dedicated to the institute of competition. The ideal functioning of the market in a regime of perfect
competition takes place when there are initial conditions absolutely equal for the different
competitors and there’s the possibility of access to market for the new ones, so that everyone of
them is able to operate in a loyal way to obtain the best results for customers’ satisfaction and
success of the Firm; in such mechanism of natural selection, only the enterprises able and worthy to
affirm themselves in the market will survive, with benefit for economic wealth of the entire
11 In particular, the art. 2598, according to which: “…makes acts of unfair competition everyone who…uses directly or
indirectly every other mean not conform to principles of professional loyalty and suitable for damaging the other
enterprises…”, means among which there are, no doubt, the deceptive and hidden Advertising.
9
society
12
. Moreover, it’s really this competition that must take place with the due fair play and, as
imposes the art. 2595 CC, “in a way to not damage the interests of national economy and within the
limits established by the law”.
In 1990 it was made a law
13
, known as “Antitrust law”
14
, having the aim to suppress every
activity suitable to make false the mechanism of free and loyal competition above described.
Exactly, in this occasion
15
was instituted the Authority for the Guarantee of Competition and
Market, administrative, independent
16
, with the competence to know the questions about the subject
matter and to which was extended, in 1992, the competence about deceptive advertising, for evident
contiguity between the two
17
.
To keep the competition relationship existing, it’s necessary that the subjects of the same have
the qualification of entrepreneurs, so they will be the author and the addressee of the disloyal
competition act
18
. In such sense, the definition of entrepreneur, contained in the art. 2082 C.C.,
results to be an indispensable reference
19
.
12
The court of “Cassation”, in the pronunciation n.1733 of July, the 6
th
, 1962 (let’s see Riv. Dir. Ind. 1962, II, p.97),
affirmed that the relationship of competition takes place effectively if two or more firms, that keep themselves busy in
the same or similar and substitutable products, put the customers in a condition to be able to operate a choice according
to their personal preference. Therefore, it’s necessary that in the same market and in the same period, two or more firms
offer, or are able to offer, goods or services suitable for satisfying the same need or similar needs. The notion of
competition, accepted by the Authority, is quite wide, referring to an actual relationship or just a potential one; even
more, it considers, as a competitor, also an enterprise in a state of liquidation (measure 14005/2005).
13
This is the law of October 10, 1990, n.287 (Norms for the defence of competition and market), published in the
Official Gazette n.240 on Oct. The 13
th
, 1990.
14
Literally, the word “trust” means the relationship based on trust, loyalty and in a most large sense, the agreement
made by entrepreneurs with the finality to limit the competition through a division of the market and a containing of the
prices. The use of the English term is because the first juridical remedies for this phenomenon were taken in the USA, at
the end of 19
th
Century (the Sherman Act is dated 1890) and one of the instruments adopted in that period to give life to
concentrations was exactly the “trust”. The European Countries will arrive to have laws of this kind only after 1945 and
Italy, as has been reminded before, only in 1990. In the common language, it’s talked about “antitrust” law and
“antitrust” authority, even if it can be found trace of these terms in no one of the Italian laws.
15
See the quoted law.
16
The administrative authorities can be defined independent if they’re able to operate in an autonomous way, respect to
the political-administrative address defined by the Government, by pursuing the public interest to defend which they
have been created. In addition, the nomination of their members is regulated in a way to rescue them from the influence
of the Executive, generally investing for this incumbency the Chambers or their Presidents. The members of the GACM
(four, after the President) are nominated by the Presidents of Chamber and Senate. “The President is chosen among
people of known independence, to be individuated among judges of the Council of the State, of “Corte dei Conti” or of
the “Corte di Cassazione”, ordinary university teachers of economics or juridical studies, and personalities coming from
economic sectors, with a high and well known personality.
17
Recently, with the l. 20 July 2004, n.215, the Authority was invested also by the competence to know the interest
conflicts that are the incompatibility between government tasks and other activity defined by the law.
18
The position of the “Cassation” about the subject is clear; in the sentence 17
th
May, 1965, n.1255, in It. Jur., 1966, I,
it can be read that “the act, to be subjected to the disloyal competition discipline….[must] be done by an entrepreneur
competitor of the passive subject, or anyway, in the interest of the competitor entrepreneur”…”By asking that the act of
competition is subjectively qualified (made, so, by an entrepreneur), it’s wanted to put in evidence not the subjective
qualification, in itself considered, whose makes the act of competition, but the mention of the act to the entrepreneur’s
activity towards a group, territorially common, of definite consumers.
19
“It’s an entrepreneur who makes professionally an economic organised activity, with the finality of production or the
exchange of good and services”.
10
The other category, under the attention of the internal and community lawmaker is, like
mentioned, that of consumers; today the protection accorded to them is not limited to the
commercial info, but comprehends a very wide field, from the contracts to the Aquiline protection
20
.
5. Pathology of Advertising
Even if in an abstract way, Advertising has an informative function with benefit for the
consumers, it’s not rare that, in practice, the suggestion gets the upper hand over and, through tricks
of various natures, tends to influence in an improper way the addressees’ behaviour. Two big
categories of advertising deception can be seen; on one hand, the fraud contained in a
communication, the advertising nature of which is evident, and here we can talk about deceptive
advertising in a strict sense; on the other hand, the suggestive message contained in a not
recognisable, or not easily recognisable as advertising vehicle contest: in this case, we are in
presence of hidden advertising.
In the first hypothesis the addressee is deceived by false, exaggerate or tendentious
affirmations, having the aim to describe the publicised product or service with deeply celebrating
tones; the celebrated qualities don’t exist at all, or don’t reach those levels of excellence that
communication suggests. This can take place in every commercial, by any mean it is diffused. In
the second hypothesis, at the opposite, is not at all necessary that the assertions are false; they can
be even objective and demonstrable truths; but the object of disapproval is, in such case, the
modality by which the object has been presented, in a frame not clearly seen as commercial, and so
in a way to trespass the normal means of defence that the consumer spontaneously activates when
he understands to be in front of commercial advertising. Inside this category, we can also recognise
different types of clandestine communications. The editorial advertising, the product placement, the
meta-tag and the limit-case of subliminal advertising (for this themes, see the next exposition).
20 “...the ‘discover’ of the consumer is quite recent. It’s a typical date of wealthy societies, and takes place gradually in
all the Western Countries, as the steps of advanced capitalism are reached…And the honour is not to be given only to
the doctrinal analysis of economists and sociologists, but also to the spontaneous organisations of consumers, who
begin press-campaigns with the charge to publicise the worst and most damaging phenomena..” ALPA, Il diritto dei
consumatori, Laterza, 2002, p. 4. Such like-association intensity will be rapidly defined with the English expression:
“consumerism”, traduced in Italian with the word “consumerismo”.
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