Review of law sciences
(2020) 130-139
7
Advertising, which includes undeveloped "alien" legal components [50]. The legal framework for
improper advertising consists of means and end provisions [51]. The mixture of these provisions
and standards that were applied to it make the regulation inefficient and vague in some point.
The legal framework of misleading advertising is unclear and ambiguous, which leads the
state to the following substantive legal issues:
First, the legislature designed the legal framework so-called improper advertising in a
mixture way, which contains misleading advertising and excessive advertising [52]. The excessive
advertising can manage to regulate time, place and manner of advertising, but cannot deal with
deception that affects consumers` economic behavior [53]. Such ambiguous legal framework of
improper advertising proved that Uzbekistan implemented the corporate regulatory model, which
gives to enforcement body an alternative choice to regulate the advertisement policy to provide
government interest.
Second, the effect of misleading advertising on consumer behaviour is the main criterion for
the legal evaluation of misleading advertising, which is called materiality standard [54]. However,
the legal provision on deception does not include materiality standard for evaluation of misleading
advertising. The lack of materiality standard in the Advertising law makes the regulation
inefficient because without estimating consumer economic behaviour the enforcement body
cannot properly determine and evaluate the effects of misleading advertising.
Third, the legal definition of improper advertising has a loophole, which is formulated as
"violations of other requirements established in the Advertising law". What kind of violations are
they? Can each violation of the Law be considered improper advertising? These questions show
that such implied legal framework can cause the abuse of regulative power by government. Thus,
government can unreasonably intervene to commercial speech of producers whenever possible due
to this loophole in legal framework.
Enforcement problems
The adopted unclear legal framework without sufficient standards cause three main problems
in enforcement.
First, the Competition Committee of Uzbekistan (UzCC), using the ambiguity of improper
advertising, makes excessive advertising priority in practice, even if the excessive advertising does
not mislead consumers. Unfortunately, the priority of the excessive advertising in practice provides
to maintain government intervention in advertising regulation. The problem can be illustrated by
a typical case. In Surkhandaryo TV case, the broadcast company violated the time requirement of
advertising dissemination. According to that requirement, advertisements on TV should not exceed
10 percent per hour, which means maximum 6 minutes per hour. However, in this case, the
company broadcasted TV commercials more than 6 minutes per hour, and therefore the violation
was evaluated as improper advertising. Thus, the UzCC evaluated excessive advertising to be
misleading one, even if it did not have misleading effects.
Moreover, the loophole in Advertising law formulated that the "violations of other
requirements" interpreted as unsubstantiated advertising by the UzCC. According to the
requirement on substantition of advertising, producers or advertisers must substantiate an
advertising information with particular documents. The UzCC usually requires to show
information on license or certification in advertisement. However, such requirement has become
prior rather than proof of deception in advertisement. For instance, in Namangan International
Airport case, the Administration of Airport placed an outdoor advertisement on a billboard that
stated the flights form Namangan to cities of Russia, such as Moscow, St.Petersburg, Ekaterinburg
Do'stlaringiz bilan baham: |