Preventive law in digital advertising communicated to consumers © – Camilo Escobar Mora

Preventive law is when there is legal validity, effectiveness and security in the case.





By: Dr. Camilo Alfonso Escobar Mora ©

Founder of JURÍDIA – Learning and Research Center for Preventive Consumer Law in Digital Advertising



This article presents the structural elements of the theory of preventive law for the effectiveness of consumer rights in relation to the advertising that the company communicates in electronic commerce (digital advertising). It should be specified that the legal (juridical) concept of consumer only exists when consumer relations are formed. These are relationships in which one end is a company (of a commercial nature) and the other (is) a consumer. The consumer (consumer) is any person, physical (natural) or moral (legal) who does not act professionally and regularly in the relevant market of the company with which she / he interacts.


The relevant market (relevant market) is the geographic and product (good and / or service) context in which the company develops its ordinary business turn —ordinary business activity— (for example: the geographical context of an electronic commerce platform can be a specific country and the product context the good and / or service offered in that territory). It is worth clarifying that a company can have a main relevant market (for example: operate worldwide and offer licenses for the use of specific software) and several relevant submarkets, according to the different scenarios and sectors involved in each case (for example: when it operates in each country, or even in each territory within that country). This is important because the relevant market of each legal relationship allows establishing the public order that applies to it and the way to comply with it through self-regulation tailored to the variables involved.


That is what preventive law consists of. The aim is to create self-regulatory solutions that allow each legal, contractual or extra-contractual, link (relationship) to be valid. The premise that governs validity is the generation of legal effectiveness. This means that something is only valid if it enforces the applicable rules (norms) in each case. So, the validity (validity) is not only formal. It is also material. The validity is the harmony of the formal and material variables of the case. Only in this way can efficiency be obtained: the enjoyment of the rights and the fulfillment of the duties that proceed in the specific situation (specific case).


Having defined the above, this doctrine (theory) must be related to the topic of digital advertising in consumer relations. When the consumer receives or perceives this kind of messages they must be valid. Its validity depends on the advertising nature. Advertising is a form of communication (that is to say: it is the transmission of a message from a sender to a receiver) that can be merely communicative or communicative and informative. The first one refers to communicating messages that are not information. The information (information) is the true, objective and verifiable message. This advertising can be done when the company enjoys the freedom to communicate without informing, for example: to communicate an advertisement (ad) that does not present affirmations but emotional experiences in the abstract.


Otherwise, it can not be merely communicative, since it has to be subject to one or several duties of information (depending on the case). When it has such freedom, the communication must ensure that the content and / or effects of the messages do not harm any consumer right (for example: that is not a sensitive content that transgresses a legally protected right enshrined in its favor, such as an announcement with violent content that affects the special and prevalent protection of minor —under-age— consumer rights). However, and as a consequence of the freedom that exists in this kind of advertising, it is not subject to information duties, because advertising does not contain or cause information. The determining factor for the validity of this advertising is that it achieves a valid agreement of the language with the consumer, that is to say that this subject receives, perceives and understands validly.


In the second case, advertising communicates messages that contain or generate information. Here, the company must detect what information duties apply to it and ensure that the communication is done in a manner that allows the consumer to receive sufficient, accurate and timely information, according to the type of message (involved). If this is achieved, the advertising will be valid because it fulfills the information duties and achieves the mentioned language agreement.


Giving way to a vision of empathy: advertising is for the consumer. Only in this way will a valid language agreement be formed. Then, the preventive law is obtained when the company acts with diligence (mercantile diligence —commercial diligence—) to determine if its advertising can be communicative or communicative and informative, and if the form that is going to do is the one that is more effective (that is to say: efficient and effective) to achieve language agreement, and if it is validly done. Thus, being (advertising) coincides with the duty to be legal that applies, according to the case variables (formal and material) —that is to say: advertising matches with law. Creating (including: communicating) a valid advertising—. If this is done in this matter, and in any other topic, the quality of life increases. Preventive law (the preventive law) is the way to materialize the law (law) in each case.