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On March 24, 2023, the State Administration for Market Regulation (SAMR) published the Measures for the Administration of Internet Advertising (the Measures).
The Measures contain 32 articles with key points including, but not limited to, as follows:
Scope of application
According to the Measures, they apply to the commercial advertising activities for goods or services that are promoted, directly or indirectly, in the form of text, pictures, audio, video, or other forms by using websites, web pages, Internet applications, and other internet media within the People's Republic of China.
Circumstances that forbid publishing of online advertisements
The Measures forbid publishing advertisements regarding tobacco (including electronic cigarettes) and prescription drugs online. It also forbid publishing the advertisement in terms of medical, pharmaceutical, medical device, health food, and food formulations for special medical purposes in a disguised form, such as introducing health, health knowledge, and other forms. It further specifies that the introduction of health and health knowledge shall not appear on the same page or at the same time with the commodity operators or service providers’ address, contact information, shopping links, and other content regarding the relevant medical, pharmaceutical, medical device, health food, or special medical use formula food.
Identifiable online advertisement
The Measures provide that the online advertisements shall be identifiable and make the consumers clearly identify them as advertisements. For instance, in terms of the goods or services with bid ranking, the advertisement publisher thereof shall mark the “advertising” prominently in order to distinguish the result from the natural search results. In addition to circumstances that are prohibited by law and administrative regulations to release or release in a disguised form, where it promotes goods or services in the form of knowledge introduction, experience sharing, consumer reviews, and so on, and adds additional shopping links and other purchase methods, the publisher of the advertisement shall also mark the “advertising” prominently.
Prohibited circumstances of pop-up ads
The Measures provide the prohibited circumstances in details regarding the pop-up advertisements, including but not limited to: (1) no closing sign or timing out to close the advertisement; (2) false closing sign, unclear to identify or difficult to locate, and so on, which create obstacles to close the advertisement; (3) closing an advertisement that requires more than two clicks; (4) in the process of browsing the same page or document, the pop-up ads continue to appear upon closing which affects the normal use of the network by users; (5) other behaviors that affect the one-click closing.
Protection of minors The Measures provide that no medical, pharmaceutical, health food, food formula for special medical purposes, medical devices, cosmetics, alcohol, beauty advertising, and online game advertising that are detrimental to the physical and mental health of minors shall be published on websites, web pages, internet applications, public accounts, and other internet media that aim at the underage.
Advertisement files
The Measures state that whether an advertisement is published by the owner itself or is made by an advertisement operator and published by a publisher or an internet platform operator, such advertisement owner, operator, publisher, and/or internet platform operator shall all keep a record of the published advertisement and the relevant material for at least three years since its publication.
Advertisement in live-stream online
The Measures specify that in case the goods sellers or service providers promote goods or services through online live streaming which constitutes commercial advertising, they shall assume the responsibilities and obligations of advertisers in accordance with law. The live studio operators, as well as the live streaming marketers who accept commissions to provide advertising design, production, agency and publishing services shall assume the responsibilities and obligations of advertising operators and advertising publishers. The live streaming personnel using their own name or image to recommend or endorse goods and services shall constitute advertising endorsement and assume the responsibility and obligations of the advertising spokesman in accordance with law.
Authorities of the local market regulation departments
The measures list in details the authorities granted to the local market regulation departments when they are investigating illegal online advertisement, which are to: (1) implement the on-site inspections of the premises suspected of engaging in illegal advertising activities; (2) question the suspected illegal party or its legal representative, the main person in charge, and other relevant personnel, investigate the relevant units or individuals; (3) require the parties suspected of violating the law to provide relevant supporting documents within a deadline; (4) review and copy contracts, bills, books, advertising works, and data of the online ads regarding the suspected illegal advertisement, preserve the online ads content with methods including screenshots, screen recording, web page preservation, photography, audio and video recording, and so on; (5) seal and seize properties that are directly related to the suspected illegal advertisements, such as advertising items, business tools, equipment, and so on; (6) order the suspension of the release of suspected illegal advertising that may cause serious consequences; (7) other authorities provided by laws and regulations.
Liability
The Measures also specify liabilities, from ordering rectification to imposing a fine, for violation of the Measures in detail. For instance, in the case of publishing an online advertisement in terms of medical, pharmaceutical, medical devices, pesticides, veterinary drugs, health food, special medical use formula food advertising, etc. without review by the authority, the advertisement owner may be ordered to suspend the publication, eliminate the effect, and impose a fine as much as five times the advertising fees or a million yuan if the advertising fee is unable to be calculated or is obviously too low, as stated in Article 58 of the Advertisement Law.
It is also worth noting that the administrative punishment decision made in accordance with the PRC Advertisement Law and the Measures will be published to the society through the National Enterprise Credit Information Publishing System. In case the violation is of a bad nature, has severe circumstances or with comparable social harm, the relevant party shall be listed in the List of Severe Violations and Dishonest in accordance with the Measures for the Administration of the List of Serious Illegal and Dishonest Acts.
Comment
The Measures are amended on the basis of the Interim Measures for the Administration of Internet Advertising, which came into effect in 2016 and is now replaced by the Measures herein. It is worth noting that the Measures reflect the new developments regarding online advertisement in recent years, including but not limited to advertisements in live-stream online, liabilities of internet information service providers, regulations on pop-up advertisements, restrictions on online advertisements targeting underage, and so on. The Measures came into effect on May 1, 2023.