Online advertising for targeting in Russia: what to pay attention to in 2023 — Versus.legal column

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Marina Pozhidaeva, lawyer Versus.Legal

In Russia, the legal requirements for online advertising are changing. The new norms of the law when conducting advertising campaigns on the Internet prescribe:

• receive an advertising token and submit advertising materials to the Unified Register of Internet Advertising (ERIR) through special advertising data operators;
• mark “Advertising” and indicate the advertiser in accordance with the requirements of antimonopoly legislation;
• provide reports on the conduct of advertising campaigns in the EPIR and record in the register all significant changes in advertising creatives;
• place social advertising on information resources within 5% of the annual volume of distributed advertising, if the audience of the site or application is more than 100 thousand users per day.

The moment of full-fledged entry into force of the new requirements on Internet advertising remains vague even for Roskomnadzor, which at first predicted that the application of liability standards would begin on March 1, 2023, when the grace period for testing the law ends, but then the starting point for fines was shifted to an uncertain future.

Now Roskomnadzor is in the process of analyzing: how information about advertising is collected, what errors and technical problems there are – therefore, the subjects of advertising activity on the Internet have additional time to adapt.

While the novelties have not fully earned, we have made an overview of how the new rules on online advertising have already begun to work, taking into account all available information, and also reminded of the older requirements for online advertising, which continue to operate in the new conditions.

Marking and transmission of advertising data

Internet advertising is all advertisements that are displayed to users in an application, on a website, in a telegram channel or other resource.

Now such videos, promotional mailings and banners need to be marked with tokens. The token or unique identifier (ID) of the advertising material allows you to identify the advertising data operator who issued the token for the creative, as well as the end customer of the advertisement.

Examples of token labeling (at the end of advertisements):

To get a token, it is necessary to provide data about the advertising material to the advertising data operator before launching the campaign. The data provided to the operator includes information about the advertising material, information about the contract with the original advertiser, a link to the site (or an application in the store).

Advertising data operators are special companies that serve as a buffer for interaction with the EPIR. It is not possible to interact directly with ERIR.

It is necessary to receive a token in relation to the final advertising material (affiliate link, post, video, banner), which will be shown to the end consumer of advertising.

Marking with a token should be distinguished from marking “Advertising” – these are different identifiers. Tracking the “Advertising” tags and the very definition of advertising material as advertising is the responsibility of the Federal Antimonopoly Service, and tracking token markings is the scope of Roskomnadzor.

Thus, advertising materials distributed on the Internet must contain:

• mark “Advertising”;
• an indication of the advertiser of such advertising and (or) a website, a website page on the Internet containing information about the advertiser of such advertising;
• marking with a token.

Advertising in games and mobile apps: there are options

Based on the current practice and explanations of Roskomnadzor, the main burden of interacting with advertising data operators and entering information about advertising into the unified register of online advertising lies with the advertising distributor. Therefore, the scope of rights and obligations will depend on what role the owner of the application performs in the advertising process.

Option 1

• The owner of the application is not an active party and simply provides third-party operators of advertising systems (for example, “Yandex.Direct“, myTarget and VKontakte) a place for advertising.
• The owner of the application does not have any contracts with advertisers, and all actions to distribute advertising through the game or application are carried out by third parties.

In this case, the application owner is relieved of the obligation to interact with advertising data operators and provide them with documents and information for inclusion in the EPIR. But at the same time, it should not be isolated from the operators of advertising systems. A game or mobile application is an advertising platform. Advertising system operators need to receive information about the game or application that can identify the advertising platform in order to comply with the requirements of the EPIR.

Option 2

• The owner of the application is a distributor, participates in the formation of the final advertising material and distributes advertising on his own using his game or application.
• The app owner has contracts with advertisers.

In this case, the application owner bears the full scope of responsibilities for interacting with advertising data operators, obtaining a token and integrating it into advertising material before launching the campaign. In addition, in contracts for the order of advertising, advertisers can transfer to the owner of the application part of their obligations to provide information about advertisers to the EPIR.

Option 3

• The app owner is an advertiser himself.
• His application or game is advertised for a Russian audience of users.

In this case, the owner of the application is subject to the requirements of the advertising legislation as an advertiser. Therefore, he is obliged to be responsible for providing information to advertising data operators and to monitor the correct design of his advertising materials (marked “Advertising”, the presence of a token, etc.) by hired advertising distributors, including bloggers, advertising agencies, etc.

Social advertising

Product developers who have (A) built-in advertising (for reference, built-in advertising is one of the main ways to monetize gaming and IT products) and (B) users from Russia who provide a daily audience of a website or application in the amount of more than 100 thousand people need to pay attention that they, as advertising distributors, are obliged to place social advertising within 5% of the annual volume of advertising distributed by them.

Reference: social advertising is the kind of advertising that is aimed at achieving charitable and other socially useful goals, as well as ensuring the interests of the state (paragraph 11 of Article 3 of the Federal Law “On Advertising”).

The distribution of social advertising is carried out free of charge under an agreement with the organization-operator of social advertising (today the authorized operator of social advertising is the ANO “Internet Development Institute”).

Advertising distributors are obliged to interact with the Institute, send it information about the advertising being distributed, their resources and products, and the volume of the audience. Failure to comply with these requirements may result in administrative liability for violation of advertising legislation with the imposition of substantial penalties.

To date, it is known that the Institute carries out its own monitoring of sites and applications, the daily audience of which is more than 100 thousand users, and sends a notification to site owners or application developers that they should cooperate with the Institute and distribute social advertising.

There is no judicial practice or cases of prosecution for refusing to distribute social advertising, so it is not yet possible to identify the logic of prosecution or find workarounds to avoid it.

At the same time, a fine of up to one million rubles is provided for the owners of websites or applications for not installing the audience counter.

Promotional mailings: advertising, but not really

Advertising of their own goods and services, which companies send to their customers as e-mail newsletters, is not advertising, information about which needs to be sent to the EPIR and which needs to be marked with a token. This can be explained by the fact that the mailing lists are not strictly related to advertising, as they are intended for a certain circle of people – from the company’s contact database. However, this exception does not mean that the mailing lists lose their advertising character and move into the free zone.

The main “control” moment in mailings is getting the user’s consent to receive them.

In the format of a checklist, we have collected several features of obtaining consent:

• Write directly that we are talking about advertising. By subscribing to the newsletter, the user must clearly understand that it is an advertising newsletter, and not about “news and discounts”, “informational messages” and other manipulations that prevent the consumer from unambiguously determining the nature of the information.
• Separate the consent to the newsletter from the rest of the text. You cannot include consent to receive promotional mailings without the right to choose in the text of the contract or consent to the processing of personal data. The user should initially have an unconditional opportunity to refuse to receive promotional mailings.
• Formalize the user’s consent directly and unambiguously. The user must express his consent to receive advertising – the consent form cannot be mediated and conditioned by familiarization with the rules for the provision of services.
• Record the moment when the user’s consent is received. The most reliable way to get the user’s consent is by entering the code received via SMS. If a check mark is used, then it should not be put down automatically – you need to record the moment of its putting and store the log file.

It should be remembered that advertising is the part of the business that is separate from the contractual relationship between the conditional advertiser and the end user. The fact that the recipient of the mailing list is currently a customer or a regular user and the company has a contractual relationship with him does not exempt the company from a fine for incorrectly building relationships around advertising mailings.

Advertising bookmakers

Since 2022, the advertising activities of betting shops have been significantly specified – regulation has become stricter. Thus, advertising of bookmakers on the Internet is allowed only if the following conditions are met:

• Advertising of bookmakers is allowed to be placed only on resources working in sports topics, or on separate pages marked as advertising. Individual pages must contain the label “advertising”, as well as an indication of the advertiser or the site containing information about the advertiser.
• Advertising should not appeal to minors. Advertising of bookmakers on websites or in applications that may potentially be intended or used by minors is not allowed. To do this, you need to check with the age category of the entire information resource as a whole.
• Sports betting cannot be advertised as a way of earning money, achieving professional success or public recognition. The bookmaker’s advertisement should not read like “place bets and forget about work” or “achieve success with us while sitting on the couch.” That is, sports betting should be advertised only as entertainment, and not as a way of regular earnings.
• One should not give the impression that a win is guaranteed, downplay the risk of losing, or condemn non-participation in risk-based games, betting. To do this, it is better not to touch on the topic of risk in the ad at all – no “almost no risk” or “the one who does not bet risks”.

The most important thing is that the advertising distributor – the owner of the website or application – must independently check the advertising materials of bookmakers for compliance with the requirements of the law. Such advertising should be content-balanced and not have excessive embellishment of reality, attracting the attention of the target audience only to certain aspects: bonuses, high coefficients and fast payouts.

Conducting competitions

Public contests are still in demand advertising tools to attract new users and win the loyalty of the current audience.

Contests do not remain in a legal vacuum and are subject to certain rules, including in terms of their advertising.

The advertising of the contest and the rules of the contest are inseparable from each other and ideally represent a single whole.

Advertising of the contest as a stimulating event should contain:

• the duration of the competition is similar to the rules of the competition;
• a link to a website with information about the contest – that is, with the rules of the contest.

It is important that all information about the contest, including the rules of its conduct, must be indicated through a link to a special website with such information. Thus, the advertising of the contest indicates exactly the source of information – an active link to the site, and not this information itself and the rules of the contest.

The rules of the competition must contain:

• information about the organizer of the contest;
• requirements for contest participants and conditions of participation in the contest – what you need to do to get a prize;
• the terms of the contest, including the date of determining the winner and the date of receiving the prize;
• prize pool: what and in what amount can you win;
• criteria for selecting the winner.

If participation in the competition consists in performing a creative task, then the rules must also specify the conditions for the transfer of rights to the results of intellectual activity.

It is best if the mechanics of the site with information about the competition allows a potential participant to put a tick after reading the rules of the competition: “I have read and accept the terms of the competition.”

General requirements for advertising: kind reminder

In addition to the specific points in online advertising, which we described above, there are general requirements for advertising that must be observed regardless of the format of the advertising campaign.

• Advertising must be honest and reliable. Advertising should not belittle the properties of competitors’ goods and services, spoil the reputation of competitors, contain false or distorted information.
• Evaluation statements in advertising must be justified and provable. For example, the use of the words “best”, “first”, “number one”, should be made with the indication of a specific criterion by which the comparison is carried out and which has objective confirmation.
• The distribution of hidden advertising is not allowed. Video and audio products should not contain hidden advertising, which has an impact on their consciousness that consumers of advertising do not realize. For example, by using special video inserts or double sound recording.
• The advertisement must contain an indication of the age category of the content consumers. The advertiser determines the necessary category independently, based on the content of the advertising material, but at the same time is responsible for the proper definition of the age category.
• All information in advertising, except for trademarks, must be provided in Russian. A trademark as a type of information is an exception to the general rule, therefore its duplication in Russian is not required. In order to avoid any claims from the FAS, it is better to put a trademark – ® legal protection mark next to the designation in English.