Internet advertising (Hong Kong law)
This guide is based on Hong Kong law. There is an equivalent UK guide.
Overview
The global reach of the internet makes it an attractive platform
for any company wishing to advertise its products or services. One
of the main legal problems faced by such companies is that the
advert may be subject to the laws of every country from which a
user can access the advert and these laws vary a great deal.
Following the lead of the US, regulators in the UK and elsewhere in
Europe, are beginning to take a fairly aggressive approach in
enforcing advertising laws and regulations against businesses which
fail to comply when advertising on-line.
What regulations apply?
Hong Kong
Online advertisers have to comply with legislation, both in
their own country and any country that the advert reaches. They
must also comply with each country's self-regulatory system
relating to advertising, which works alongside the formal
legislation.
In Hong Kong, the on-line advertiser will need to make sure he
complies with a myriad of formal legislation. Some of this
legislation is generic for example, the Trade Descriptions
Ordinance (which prohibits misleading descriptions). Some is aimed
at the advertising of particular products or services for
example, the Undesirable Medical Advertisements Ordinance (which
regulates certain medical advertisements) and the Estate Agents
Practice (General Duties and Hong Kong Residential Properties)
Regulations (aimed at advertisements by estate agents).
As well as complying with formal legislation, the advertiser
must also have regard to regimes of self-regulation dealing with
misleading advertising and unfair competition.
In Hong Kong, the Association of Accredited Advertising Agents
of Hong Kong, a self-regulating body, has issued a Standards of
Practice to its Members. Membership of the Association is
voluntary. The Asia Digital Marketing Association has also issued
various guidelines for best practice in relation to digital
marketing.
What practical steps can be taken?
Although the internet gives a trader the opportunity to sell to
every country in the world, most traders have more restricted
horizons. The first step for any on-line advertiser is to determine
the markets he is targeting and to investigate the laws which apply
in those markets. He should then seek to comply with those
laws.
Complying with the laws of targeted markets is not sufficient
protection, however, if orders might be received from other
countries as well. The prudent advertiser will also take steps to
indicate that orders will not be accepted from non-targeted
jurisdictions and incorporate some means of screening for orders
which are nevertheless received from those jurisdictions. While it
is the advert rather than the order which potentially causes the
offence, an advertiser who can be seen to have taken steps to
exclude residents of a particular country will clearly be in a
better position to defend himself against any claim by the
authorities of that country.
If the goods on the site fall within a particularly sensitive
category the advertiser might even investigate barring access to
the site to viewers from certain areas of the world (for example,
barring access to alcohol adverts for viewers from certain Islamic
countries).
Conclusion
In the context of advertisements, the internet is simply a new
means of publication. However, because it is ubiquitous, the
approach of the advertiser has to change. Previously the advertiser
decided which markets he wished to target and placed adverts in
media circulating in those markets. Now he must decide which
markets he wishes to target, and then take steps to exclude the
effects of passively advertising in other markets.
Any questions? Please contact peter.bullock@out-law.com /
+852 2521 5621 or one of our other contacts.
