Internet advertising, self-regulation and educational needs
| Autor | David López Jiménez - Antonio J. Monroy Antón - Gema Sáez Rodríguez |
| Cargo | Doctor (mención europea) en CCEE- DEA en Derecho - Doctor (mención europea) en CC AFD - DEA en Derecho - Doctor CC AFD |
| Páginas | 61-72 |
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Today, advertising is a phenomenon present in virtually all social activities. Promotional activity has been transformed, as needed, throughout the different stages of social, economic and cultural scenarios. In fact, it has starred in a short space of time, a very significant development. Given its level of investment, but also due to the use of new technologies, we can state that has achieved a remarkable development.
Advertising is a competitive tool, one of the most significant nowadays, when economic operators use it to promote the hiring of goods and/or services offered on the market (Anderson & Renault, 2006). It is a clear example of asymmetric information. It should be noticed that advertising not only exposes the character of the products and/or services, but goes further. In fact, it has been known from long time ago that it is configured as a means of transmitting, instilling and enhancing certain values and behaviour patterns estimated as the common base of the collective consciousness (Braithwaite, 1928).
Advertising represents a characteristic phenomenon of modern society. Thus, among other aspects, it encourages growth and innovation, drives competitiveness, combats abuses of dominant positions, and expands consumer choice. To fulfil this important mission, advertising must have a high level of confidence of the latter. To this end, it is necessary that it is truthful, legal, honest and loyal. Bad advertising, which does not meet any or all of the above characters, even representing a tiny portion compared to the total set, will undermine consumer confidence and finally all advertising in one way or another, will suffer the adverse con-sequences. Therefore, to avoid this and for the benefit of society, it is necessary that advertising is regulated (Beales, Craswell & Salop, 1981). There are two options, applicable to the pharmaceutical sector, which are not mutually exclusive but complementary: legal self-regulation - or hetero-regulation- and self-regulation -or discipline or the pharmaceutical industry itself-.
However, not everything is positive, since, precisely, there are problems regarding regulation (Pitofsky, 1977). While it would be desirable and appropriate to maintain a strict control of all online advertising, the reality shows that, at present, it is not possible. In any case, it will be the own Web which, through self-regulation, determines both a certain increase in the level of responsibility for the pharmaceutical industry and the protection of consumers and / or users.
Control of pharmaceutical advertising content on the Web is a major issue which raises new challenges for Law and, of course, for companies which operate in this environment (Craw-ford, 2003; Henney, 2001). The way in which this problem has been traditionally addressed, unfortunately, fails on the Web. in fact, States can no longer act alone to address the control of materials -which, in this article are focus on the pharmaceutical sector- that pass through a media that knows no territorial frontiers. Supranational solutions are, therefore, necessary. State regulation should continue playing an active role in Internet, but together with them, complementary measures are making headway among which corporate self-regulation must be highlighted (Beales, 1994). One area in which it can be appreciated is human drugs advertising through the Internet .
This study analyzes the virtuality that the phenomenon of self-regulation can play against interactive advertising of medicinal products for human consumption, with the objective to find solutions to the current situation in which users can find in the Web, without being aware, counterfeit, adulterated, expired or damaged medi-
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cines that can compromise seriously their health.
In order to reach those solutions mentioned above, and to be aware of all the research that will be developed, it is necessary first to study the concept and characteristics of the phenomenon of self-regulation. Only then the impact of such an instrument in the particular area of investigation can be understood.
Once that is done, it will be the time to study virtual advertising of medicinal products, in which self-regulation serves as a complementary tool.
After analyzing all the literature and Laws regarding self-regulation of Internet advertising, we can reach the concept of self-regulation and explain its characteristics, including its prerogatives. Once a large enough concept of it has been exposed, the particular role it can play strictly in the advertising scenario will be analyzed.
Self-regulation is the action and the effect of regulate itself. Although it is not in any way a unique meaning for this concept of self-regulation, it can be agreed that in a first approach, it must be understood as the ability of a subject to provide standards for himself. Also, this word is used to refer to those principles, standards and techniques that define a good professional behaviour -called lex artis-, or the appropriate behaviour patterns in the daily life of an activity that requires the application of certain technical or ethical knowledge or at least, a certain degree of specialization.
Today, it is a novel formula with clear prospects for the future due to its advantages. The novelty and interest that arises today is due to the effects of some of its features that are outstripping the private orbit, in which, originally, are conceived to achieve a public dimension or, in other words, to become the benchmark that take into account the public authorities.
The advantages of self-regulation, among others, the following: it is voluntary, which greatly facilitates its practical application and enforcement without intervention of the State; flexibility; specialization; it encourages the development of standards that ensure high levels of correction; transparency, prevention of violations in the area regulated, especially if pre-assessment mechanisms exist; the covering of any legal gaps; and easy access. Last but not least important, it is necessary to highlight the advantages of saving time and legal and economic resources for the government, which can lead to the empowerment of these techniques of self-regulation in different models of consumer protection. This is because, besides the additional protection that results in all these techniques to the consumer and/or user, it can help the legal-public system itself, to get rid the costs of regulation.
The formula regulating social relations that occur in a certain sector, like self-regulation, has always existed, in one way or another, as any organization, of course, somehow regulates it-self. The phenomenon of self-regulation means the enforcement of a pattern of conduct, ethical principles and standards, whose compliance has been previously targeted. Simultaneously, it is also an expression of commitment to social responsibility in a particular sector of industry. We can thus say that the professionalization of business leads to self-regulation. The pressure
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regulator of the public authorities, aimed at promoting and even impose, in some cases, self-regulation is one manifestation of the need to increase the degree of professionalization of the companies.
Based on self-regulation is a more in-formal practice than law and that is has no coercive capacity -understood in the sense of a virtuality and scope close to that of the State-, its effectiveness can be very weak if not given a favourable cultural environment and the organization of all parties involved.
It should be noted also that self-regulation can not be seen as an excuse to exempt the legislature of its obligations, but as a complement to a legislation that, inevitably, will have a very general and ambiguous character.
Advertising self-regulation can be defined as a voluntary system established by the companies in the advertising industry by virtue of which is intended to enable the exercise of advertising activity legally, honestly and responsibly for the benefit of users and consumers, competitors, the advertising market and society in general (Gómez Castallo, 1998 and 2002; Gómez Segade and Lema Devesa, 1982; Patiño Alvés, 2007; Ramos Fernández, 2003;). To do so, adherents to a self-regulation system consciously submit to rules of conduct whose observance is entrusted to an independent control.
The phenomenon of cross-border advertising self-regulation represents a manifestation of the progressive development of significant outside-State rules -different from the state laws and international standards (contained largely in international conventions)- not only for the...
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