Web advertising is a 'global goldmine'

UK regulations define advertising as any form of representation that is made in connection with a trade, business or profession to promote the supply or transfer of goods or services.

The Internet and the Web have turned the communication of such representations into a potential global goldmine for advertisers.However, the use of a Web site for advertising purposes, is not without potential pitfalls in terms of breach of advertising codes and trade mark infringements in any country where it is accessed.

For example, in the UK alone, 180 different statutes and regulations exist affecting advertising and promotions, and there are more in the pipeline.

In some instances, EU directives are relevant, as is law on contract, negligence, libel and intellectual property.

As Web sites become ever more diverse, such legislation will not only apply to the material being communicated, but also to commercial activities.Rules relating to employment, for example, will apply to recruitment Web sites, as will the plethora of consumer protection and trade description legislation for consumer-facing Web sites.But do Web sites amount to advertising? Confusion arises as the distinction blurs between materials caught by the various advertising rules and those that are not, such as editorial or other materials.In the UK, non-broadcast advertisements - such as Internet promotions - are regulated by the advertising code, part of the British Code of Advertising and Sales Promotion, which are subject to interpretation by the self-regulated Advertising Standards Authority.

BCASP's basic principles require that all advertisements be 'legal, decent, honest and truthful' and that advertisers, publishers and owners of media ensure that advertisements are designed and presented so they may be easily distinguished from editorial content.All businesses thus have primary responsibility for ensuring that everything they do, including advertising, is legal, in whichever jurisdiction it appears or operates.

Compliance issues in relation to advertising should be considered from an international perspective.

Under the EU directive, businesses will be liable in member states where they are based, not in all EU jurisdictions where their Web site may be accessed or e-mails received.

Only when the derogation from the 'country of origin' principle have been implemented into national laws will it be possible to know whether individual EU member states laws will continue to apply.

As the failures of the takeover directive and the 'consensus' copyright directive demonstrate, the development of a consistent EU approach is likely to be a protracted and difficult process.James Catchpole is a member of the IP, IT and digital business group.