What I value most in students is the perseverance and courage to express an opinion and counterargument freely and respectfully without fear of what they will say
Text: Christian Vidal Beros, CEO of LWYR.
Images: Sofia Estrada.
María José Martabit is a trial lawyer, academic and now the author of the first book in Chile on advertising regulations. Recognized among her peers as dedicated and hardworking, she has just presented the work edited by Tirant lo Blanch at her alma mater, the headquarters of the Pontificia Universidad Católica de Chile, supported by prominent academics such as Carmen Domínguez, Francisca Barrientos, Ana Karina Gómez, Juan Luis Goldenberg and Dean Gabriel Bocksang.
– Advertising and Law How and when did the interest (or need) of Law begin to regulate advertising in Chile?
– We can say that advertising as a concept was born in Chile in 1812. The first advertisement was published by the country's first newspaper, La Aurora de Chile. The advertisement advertised a foreigner who offered his professional engineering services in our country. The notice read as follows: “D. Henrique Ross, Engineer, Born in Baltimore, offers his services to the public in Chile, where he has just arrived: he has dealt with the construction of machines of all kinds, particularly those used to drain the mines. Whoever wants to occupy it happens to the printer”. Since then, the newspaper began to incorporate advertisements of all kinds.
In the first decades of the 20th century, the issues that were advertised were mainly related to women's clothing, food, beverages, health, beauty, hygiene, and innovations for the home.
For a long period of time, there was no regulation in our country regarding advertising. Normatively, it is not until 1968 that we find the first reference to advertising in a law, through the enactment of Decree with Force of Law No. 725 that created the Sanitary Code. This normative body included the purpose of dissemination and education in health matters, the prohibition of any form of publication or propaganda that deceives the public or harms their health, as long as they provide information regarding hygiene, preventive or curative medicine and other branches similar. Consequently, in article 54 of the Sanitary Code, the configurative situations of deception or harm to the public were delimited, which provided the following: "It will be considered that from the sanitary point of view the public is deceived and the interests of the population are harmed. , when through publications, projections and transmissions or any other audiovisual propaganda system, the services of a person or persons who are not legally empowered to practice medicine and other branches related to the prevention or cure of diseases are offered or announced. Likewise, they may not be advertised as medicinal, nutritional or medically useful products, except those that have been authorized or recognized as such by the National Health Service”.
After this regulation, several regulations were issued that separately regulated different issues and their advertising. It was not until 1997 when Law No. 19,496 on the Protection of Consumer Rights was published, which introduced regulations to regulate advertising in a broader way.
– What is the current state of advertising regulation by Chilean law?
– In our country there is no regulation or general law on advertising, unlike what happens in other countries such as Spain, for example. On the contrary, in Chile there is only a disaggregated treatment of the matter based on the articles of Law No. 19,496, on Protection of Consumer Rights, which regulates the matter in a more general way. Additionally, CONAR's Chilean Code of Advertising Ethics has been extremely useful in providing guidelines on the matter. Likewise, depending on the specific item of the product or service in question, it is relevant to review whether there are special rules that could apply to specific advertising. For example, if what is advertised is food, the vast legislation on health and food matters should be reviewed to understand what advertising rules apply to such products. Consequently, we can say that, although in Chile there are some general regulatory bodies, such as the Law on Protection of Consumer Rights, there are also many sectoral regulations that regulate advertising. In this way, the national scenario presents a regulation disseminated in different normative bodies.
– Regarding the new advertising models, what is native digital advertising?
– In this regard, SERNAC has been in charge of defining what we should understand as native advertising and has indicated the following: Native advertising is an upward advertising trend that consists of sharing promoted content on a website, blog or any other digital platform maintaining the format and style of its editorial content. For example, sponsored posts on Facebook or Twitter. It is important to note that this type of advertising must be identifiable as such by consumers. For this, the industry has developed a series of indications that indicate, for example, how a text or image can be included that indicates that it is advertising.
For their part, advertisers have also taken care of self-regulating the ethical norms that govern Native Advertising through CONAR's Chilean Code of Advertising Ethics. In this sense, Native Advertising is one that is similar to news, featured articles, product reviews, entertainment and other subtle forms of commercial communication, it is one that integrates, visually and contextually, naturally with editorial content or advertising. functionality of the medium in which it is published, trying not to cause interruption or be invasive, and being present in a way that is more harmonized with the content of the medium than conventional advertising.
Native Advertising is an established phenomenon, not only in Chile, but worldwide. According to studies, it is estimated that, in the year 2021, about 74% of the income was derived from Native Advertising in the United States
– How has the Law regulated the phenomenon of Influencers in Chile and the world?
– From Native Advertising, the concept of influencer arose, that is, that person who promotes products and services, and who also receives remuneration in return. As their name indicates, these personalities effectively seek to influence their followers to purchase the products that they appear to be promoting based on the trust they have in them.
Not all influencers advertise products or services, there are also those who, not being sponsored by a brand or without receiving any kind of consideration to generate content, only give their opinions regarding products or services. These opinions do not constitute advertising, as they correspond to subjective statements not supported by the sponsoring brand. This has been indicated by the FTC (Federal Trade Commission of the United States) in its guidelines guide for Advertising generated by influencers, only to the extent that the influencer works with a brand, must they comply with the law when issuing their recommendations on a product or service, being one of the fundamental characteristics of the advertising message, the one that is revealed as such.
A famous case related to the figure of the influencers, arose as a result of the lawsuit that Samsung filed against one of its ambassadors who was seen using an Iphone cell phone in a public place, which quickly spread to the public. through social networks, meaning the influencer was notified of a million-dollar lawsuit for breaching the contract, which stipulated that the use of cell phones from competing brands was prohibited in one of its clauses.
– Some challenges of online advertising: buying likes, fake profiles and dark patterns
– The challenges are many. On this occasion I will refer to the case of buying "likes" on social networks. This conduct is intended to deceive and confuse the public, and may constitute a case of misleading advertising. In this regard, there is a large number of people circulating on the network with false profiles or so-called "zombies" or real people who create accounts and then charge companies that are dedicated to selling followers and "likes" to brands, artists, etc. , athletes, politicians, etc., who want to stand out in numerical terms. Facebook acknowledged that it went from 23 million fake accounts in 2012 to 119 million fake accounts in 2019. Another very relevant phenomenon has to do with dark patterns, which consist of user interfaces used by some online companies to lead consumers to make decisions that they would not have made if they had been fully informed and empowered to select another alternative. During 2021, SERNAC published a report on the matter with the aim of publicizing these new phenomena that can be conceptualized as misleading advertising in certain cases. I spoke on this matter at the last Conference on Consumer Law and the truth is that there are more questions than answers on the table.
– How did the book recently presented at the UC Law School come about?
– Uffff. The story is long. I began my working career in civil and commercial litigation, and on that path, life and destiny brought me closer to consumer law and matters related to advertising. Thus, I had the experience of litigating several cases related to misleading advertising, comparative advertising, unfair competition, denigrating advertising, and a host of issues that brought my professional career closer to the world of consumer, trademark, and advertising law.
With that experience, in 2019 I began to teach a course on advertising legislation at the UC Law School, my alma mater. The course was called "Advertising Law" because it was taught in English to a group of law students in which several exchange students from different countries around the world also participated. I realized that I was fortunate to be able to teach several lessons from the cases in which I was fortunate to be actively involved.
While I was preparing the materials to teach said course, I noticed that despite the existence of incredible papers and academic articles on law and publicity from outstanding professors and professors in our country, there was a lack of a book that could compile the existing knowledge and jurisprudence . As I have always liked challenges, I naively thought that the postnatal period for my second child would be a good time to start writing. I confess that during the postnatal I only wrote 3 pages, the outline, I think I did not measure what it meant to be the mother of a one-year-old daughter and a newborn son.
As there were no specific books on the subject in Chile, the first thing I did was buy several foreign books to build a personal library on advertising legislation in the rest of the world. The pioneering countries in the matter are undoubtedly Spain and the United States. Thus, I was able to complement the bibliography of this book. That was the moment in which I invited those who worked with me to be part of this project. Without them, the result of the book would not have been what we know it to be, since their collaboration was invaluable. All those who contributed to the project are very talented, brilliant and committed people, Gabriela Yuseff, researcher and main collaborator of the work, Kureusa Hara, Eduardo Reveco and Javiera Durand collaborated as co-authors. It is impossible not to mention Valeria Guerra from Editorial Tirant Lo Blanch Chile, for her support throughout the editing process, and Professor Carlos Amunategui for his guidance.
– How do you make a legal book useful for other industries as well?
– As the title of the book indicates, what this work does is explain how advertising is regulated in our country. A great effort was made to try to use legal and precise language, but at the same time simple. This is how the book had more than 6 revisions to simplify the language. In this way, it is sought that the work be a contribution and guide for many people, for students, lawyers or non-lawyers, for marketing experts, publicists, for small or large businessmen, and for all those who want to advertise or promote their products. their products or services. Therefore, if you look at the cover of the book you will realize that it is not a common design that is used in the legal world, but that it is much more avant-garde. All thanks to the designer with whom we worked on the cover who helped us with this innovation.
The impact was evident, it implied the delay in the delivery of the work. I must admit that as a general rule I never regret my decisions, but in the middle of a pandemic, with a very high workload, with two very young children, learning to adapt to the complexities of teleworking and with a lot of uncertainty about the future, I asked myself several times in silence, why did it occur to me to write a book? Why did I get into this?
But the truth is that, as I said before, I always knew that, even if it took me longer than planned, it was a challenge that had begun, and, therefore, it was a challenge that had to end no matter what. The project, like everything in life, had good and bad things, some mistakes and many lessons learned, but by adding and subtracting, it showed me that working collaboratively and with conviction, anything is possible. The result was more than positive.
Short questions
To my mother and grandmother, for teaching me to live with courage.
To my husband and my children, for showing me life as a great adventure in which everything is possible.