By: Dr. Camilo Alfonso Escobar Mora ©
Founder of JURÍDIA – Learning and Research Center for Preventive Consumer Law in Digital Advertising
In our theory of preventive consumer law in digital advertising communication of advertising is the way in which the message is transmitted and must be valid. It is valid if each of its variables (in each of its facts and in all its facts as a whole), each of its facts and all its facts as a whole (properly: the case understood as the set of its facts) are harmonious with rules that apply.
This is concrete in that business digital advertising must be communicated in a way in which the message that is transmitted is harmonious with the rules that apply to its nature, content and scope (effect) and make (achieve) a language agreement with the consumer that is harmonious with rules that apply to both that communication and the case of advertising.
Then: there is the case of communication of business digital advertising and there is the case of business digital advertising. The case of communication of advertising means the case of the legal relationship that is formed between the company (commercial) and the consumer based on the form of communication of advertising. The case of business digital advertising means the case of the legal relationship (extra contractual and / or contractual) that is formed between the company and the consumer based on a digital business advertisement.
Therefore: the case of communication of advertising has its variables and facts. That is to say: it is a case that is made up of facts and each fact is composed of variables. Properly: the case is the set of its facts (and each fact is the set of its variables —properly: a fact is a set of variables related to a particular element within the case—). Then: its validity is when each of its variables, each of its facts and its facts as a whole are harmonious with the rules that apply to them.
But: it is a case that at the same time is part of the case of business digital advertising. The case of business digital advertising includes both that case and the case of creation of advertising, the case of operation (functioning) of advertising and the case of attention (attention of the effects) of advertising. Therefore: for the case of communication of business digital advertising to be valid, the case of business digital advertising must be taken into account.
Because: the case of communication of advertising is only valid if advertising is communicated in a harmonious way with the rules that apply to the form of communication and that is only possible if the case of business digital advertising is known and it is foreseen and makes the communication harmonious with the rules that apply to that case. Then: it must be foreseen and have the advertising communicated in a way that makes the duties and rights applicable to that communication (and in the case of advertising in relation to the form of communication of advertising) are efficient.
For that reason: to make the communication of the advertising valid (properly: to make the valid case of communication of the digital business advertising) it must be taken into account that advertising is a form of communication. Properly: it is a form of communication to influence consumer decisions. So: advertising can communicate messages that are not information, communicate messages that are information or communicate both messages that are not information and messages that are information. The information is the true, objective and verifiable message.
Then: the company must communicate the message (or messages) that is harmonious with the rules that apply to the form of communication and the case of advertising. Everything depends on the case.
In some cases: it can communicate (in whole or in part, that is: in relation to one, several or all the messages that are communicated) any kind of message (or messages) and communicate it (or communicate them) in the way it decides (whenever it is diligent —that is, that it be in a way that makes the valid case—). In other cases: the company must communicate (in whole or in part, that is: in relation to one, several or all messages that are communicated) a specific message class (or messages), but it can communicate it (or communicate them) in the way it decides (as long as it is diligent). And in other cases: it must communicate (in whole or in part, that is: in relation to one, several or all the messages that are communicated) a specific class of message (or messages) and must communicate it (or communicate them) in the manner indicated in the rule or the rules that apply to the case of communication of advertising and / or the case of advertising (company only have the freedom to decide and do what is not indicated in a precise, clear and comprehensive way, as long as decides and make it in a diligent form —diligently—).
For this reason: company must be diligent in anticipating (foreseeing) and making advertising communicate (properly: that the message or the messages of the advertisement are communicated) —whether it is communicated directly, whether it binds (links) a third party to communicate it or whether that it is a mixed model in which the company communicates a part and one or some third parties communicate another part— in a harmonic way with the rules that apply to the nature, content and scope (effect) of the message (or messages).
For example: that does not transmit to the consumer a content that for her / him is sensitive and injures one or more of her / his rights. Or for example: that fulfills the information duty or duties (properly: the duty or duties related to the information) that company has in that advertising in a way that makes effective the information right or rights (properly: the right or rights related to the information) that consumer has in that advertising.
At the same time: the company must be diligent in anticipating (foreseeing) and making advertising communicate in a way that makes a language agreement harmonic with the rules that apply to both the case of communication of advertising and the case of business digital advertising. This means that advertising must make a language agreement with the consumer in which consumer perceives, receives and / or understands —according to the case— the message (or messages) of the advertising in a harmonic way with the rules that apply to both the case of communication of advertising and the case of business digital advertising.
That is to say: company must be diligent in communicating the advertising (and / or in making that the third parties that are linked in the advertising communication be diligent in communicating the advertising) in a way that makes the perception, reception and / or understanding (as the case may be) of the advertising make effective the rights and duties of the company and the consumer that are applicable both in the case of communication of advertising and in the case of digital business advertising.
So: the case of communication of advertising is valid if advertising is transmitted with a message (or messages) whose nature, content and scope is harmonious with rules that apply and achieves a language agreement with consumer that is harmonious with the rules that apply.