CAMILO ALFONSO ESCOBAR MORA

BIBLIOTECA JURÍDICA DE BOLSILLO

FOUNDATIONS OF THEORY OF PREVENTIVE CONSUMER LAW

IN DIGITAL ADVERTISING

1.ª EDICIÓN 2020

CAMILO ALFONSO ESCOBAR MORA

COLEX 2020

Copyright © 2020

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© Camilo Alfonso Escobar Mora

I.S.B.N.: 978-84-1359-025-7Depósito legal: C 511-2020

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CONTENTS

ABOUT THE AUTHOR � � � � � � � � � � � � � � � � � � � � � � � � � � � 13

EPIGRAPH � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 15

FOREWORD � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � �17

1. INTRODUCTION � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 19

2. DEFINITIONS � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 47

3. FOUNDATIONS � � � � � � � � � � � � � � � � � � � � � � � � � � � � � � 63

13

ABOUT THE AUTHOR

Law graduate from the Universidad del Rosario, (Bogota, Colombia)� A post-graduate master’s studies in Information Technologies Law and in Telecommunications Law, Univer-sidad del Rosario� An LL�M degree in Commercial Law and Ph�D� in Law, from the Universidad Externado de Colombia (Bogota, Colombia)�

Conducted a doctoral research visit at the Instituto de Investigaciones Jurídicas of the Universidad Nacional Autó-noma de México (UNAM). Creator of The Theory of Preven-tive Consumer Law in Digital Advertising. Researcher, Pro-fessional, International Speaker� Member of the Panel of the First Global Awards for Effective Advertising Self-Regulation� Organized by the International Council for Ad Self-Regulation (ICAS). Founder of JURÍDA Learning and Research Center for Preventive Consumer Law in Digital Advertising (www�juridia�co)� Contact: gerencia@juridia�co�

15

EPIGRAPH

This theory is the form of validity (legally) – custom to the case (the case of digital business advertising).

The author

17

FOREWORD

The impact of information technology has extended into every human activity, however the best efforts to keep the pitch of the legal institutions designed in the XIX and XX cen-turies have not been enough due to the radical changes that society has produced�

One of the fields where the changes have been seen most evident were produced by the eruption and generalized use of technology in consumer habits, with the consequent pres-sure that is produced between new social trends and the norms created mostly for analogue consumer behavior or concluded by physical means�

In this order of ideas, one of the activities that has the most relevance in the act of consumption is, without doubt, advertising, which has been the object of different studies from the legal, economic and social perspective. Nonethe-less, the surge in digital advertising, its absence of borders and its special selection of a target audience is a source of unlimited possibilities, however all the while controversial�

Different branches of law have tried to contribute solutions to the challenges that are imposed in the consumer relations-hips in the digital era and the advertising taken place in this territory, the first being obviously consumer law, as well as commercial law and the protection of personal data, among others� However, none of these disciplines individually consi-der the capacity to adjusting answers to the necessities and especially to the pace of business and actions in digital con-sumption�

In this scenario, the legal certainty is a fundamental piece in order to create confidence between actors so diverse, such as content creators, businesses that expect to sell their pro-ducts or render their services, advertising agencies, influen-cers, and of course consumers� That is why one of the most important ways to achieve such certainty is the prevention of disputes, it is of vital importance for the proper functio-

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FOUNDATIONS OF THEORY OF PREVENTIVE CONSUMER LAW IN DIGITAL ADVERTISING

ning of consumer, advertising and business actions in the digital environment, however due to the diverse nature of actors, disputes and the high quantity of norms that must be analyzed and applied; such work is titanic at the least�

In effect, the resolution of disputes is one of the most sig-nificant ballasts with which one has to support a business or frequent shopper, but if the activities carried out are found in the digital environment, their opportunity, effectiveness and speed are fundamental factors for the proper development and monitoring of business in that media�

Thanks to his rigors legal training and the emphasis that he has taken through his entire academic and professional career in technologies of the information, Doctor Camilo Escobar has given the task, starting many years ago, to deeply study the vicissitudes of the digital advertising environment�

The “Theory of Preventive Consumer Law in Digital Adver-tising”, the product of the in-depth study conducted by Dr� Escobar is just a sample of the amalgam of disciplines neces-sary in order to give answers to the challenges that the digi-talization poses and masterfully shows the answers that can contribute technological resources in conjunction with the theory of law to such challenges�

This work is not only mandatory consultation for everyone related to the activities of advertising in the digital world, but also for everyone interested in the role that law as a tool per-forms in the prevention of conflicts and disputes more than as a way to resolve them�

Congratulations to the author for this rigors research pro-ject that in all certainty will contribute solutions to a vital environment for the development of human activities and we are sure that the theory presented here will serve as a refe-rence to academics and practitioners of the law alike�

Manuel Guerrero Gaitán, Ph.D.

Translated by Eric Froiland

19

1. INTRODUCTION

In this chapter a contextualization is made in respect to what the theory consists of (the theory of preventive consu-mer law in digital advertising), what the scope of the theory in digital advertising is and what is its importance�

It is worth clarifying that everything is focused on the collective construction of knowledge, so the reader with their own experience and own perception of life, will provide feed-back on the premise that will be communicated (tailor-made to their way of being of the cases that will be attended)�

The objective of this work is to communicate the structural elements of the theory of preventive consumer law in digi-tal advertising to know and understand the way of making digital business advertising (in this work, the word business means the relation with a mercantile – commercial business) with legal validity, effectiveness and certainty.

The knowledge of the legal validity of digital business advertising is not clear� Many people have the illusion of comprehension or the illusion of knowledge of the legal vali-dity of digital business advertising because they know about consumer protection matters, topics of applied law in (mer-cantile) commercial business, because they know equally the matters of personal data protection, etc�, (actually, a general level), but they don’t know the form of reaching legal vali-dity in the digital business advertising, because (actually) it is something that goes much further than (simple – properly: this particular) consumer protection or (simple – properly: this particular) protection of personal data�

It is all a system that involves (direct and indirect) varia-bles and (obviously) when I make the reference that it is not as simple as protecting the consumer or as to processing the data, I refer to the simplicity as in many cases that face these matters, those that understand or where they unders-tand (in some contexts) that the consumer protection or the protection of personal data simply consists of following the

20

FOUNDATIONS OF THEORY OF PREVENTIVE CONSUMER LAW IN DIGITAL ADVERTISING

framework enshrined in the provision� Or to read and directly apply some framework enshrined in some provision� It is not like this. Really, it is not like this. It is how we really create legal solutions tailor-made to each case in digital advertising, so that that advertising will be valid�

It is something beyond calculated or distinctly express visions of compliance of the law� It is more a way that I develop methodologies to identify and attend to the direct and indirect legal variables present in digital business adver-tising� The theme is really unknown� So, I researched the theme (I have researched for years) and, therefore, I created the theory of preventive consumer law in digital advertising.

What does this theory work for? For various elements (aspects)� First, it works that the law is created, based, inter-preted and applied at a preventive level in each case of digital advertising� On the other side, it works so that the consumer knows their rights and obligations in this field. Actually, the consumer does not have clear (nor have clear) their rights and their obligations� They only have some elements clear� In addition, frequently, they only analyze the theme of busi-ness advertising from the view or from the variable of false advertising� Moreover, there exists (many) more elements (or some more elements, depending on the case) than the spe-cific elements enshrined in some provision (for example: in a consumer protection statute)�

It also serves so that the (mercantile – commercial busi-ness) business knows, understands and applies the funda-mentals and the premise to validly do, contract, or adjust their digital advertising� Likewise, it serves so that each human being knows the rights and obligations in this field and apply and execute this preventive view in all fields. In other words, (there) exists an intensive effect of the theory because this theme of preventive law, and actually this theory of preventive law, can be applied in any other theme� Which, in addition is ideal because (this) is what allows the creation of quality of life (valid – legally). So indeed, the final point in which this serves, (the) theory is to create quality of life�

Business advertising in digital media has particularities on a legal level� In order to understand it, we must know what the current context consists of in its development (digital business advertising)� This context or this system (namely) denominates the context of the information and communi-cation technologies (ICT)� Information and communication technologies is anything that allows the (individual or simul-

21

1. INTRODUCTION

taneous) creation and the (simultaneous) management of information and communication� In other words, it is any technology that allows creating or managing information and communication�

In the current state of the art, such technologies are digi-tal� Therefore, we focus on the digital business advertising� Then, the ICT, the information and communications techno-logies are the link between the two elements� Which are, information on one side, and the telecommunications on the other side� The information is the science in charge of the information management� Whether a piece of information is in atoms or in bits� Moreover, telecommunications (telecom-munication) is the science in charge of the communication of messages over distance� Currently, by digital media�

ICT is the link between information and telecommunica-tion� So, in order to understand a digital business advertising system there is to, among others, identify their information and telecommunications variables to be able to validate such advertising� We look at digital business advertising that not only makes reference to the piece or all of the content of the message, but to an entire system of variables (as I have been saying)�

So, what are the elements of an ICT technical project? On one hand, the human being� The human beings that are related to or linked to business, as much internal as exter-nal, and/or the human beings that use or interact with the business� That is to say, human beings that use the business projects or that that associate with the business� Likewise, the organizations� The organizations are all the commercial businesses and entities, private or public, that are not busi-nesses, that have a direct or indirect relation to the project� Direct, as users, as service provides of some sort, or as wor-kers, partners, etc� Indirect, for example: as researchers or controllers of what makes up that (the mercantile – commer-cial� Business – responsible for the ICT project) business�

On the other hand, the hardware� This refers to all the tan-gible, physical components, (namely: analog) of the project� For example, video cards, hard drives, or peripherals (such as keyboards, screens or monitors, among other things)� And the software� The software refers to is a set of instructions and of algorithms that permit that the human being gives commands or requests activities to the hardware and this (the hardware) understands what to do through the software�

I.S.B.N. 978-84-1359-025-7

The book is an explanation respect to what the theory consists of (the theory of preventive consumer law in digital advertising), what the scope of the theory in digital advertising is and what is its importance.

ItIt is worth clarifying that everything is focused on the collective construction of knowledge, so the reader with their own experience and own perception of life, will provide feedback on the premise that will be communicated (tailor-made to their way of being of the cases that will be attended).

TheThe objective of this work is to communicate the structural elements of the theory of preventive consumer law in digital advertising to know and understand the way of making digital business advertising (in this work, the word business means the relation with a mercantile – commercial business) with legal validity, effectiveness and certainty.

TheThe knowledge of the legal validity of digital business advertising is not clear. Many people have the illusion of comprehension or the illusion of knowledge of the legal validity of digital business advertising because they know about consumer protection matters, topics of applied law in (mercantile) commercial business, because they know equally the matters of personal data protection, etc., (actually, a general level), but they don’t know the form of reaching lelegal validity in the digital business advertising, because (actually) it is something that goes much further than (simple – properly: this particular) consumer protection or (simple – properly: this particular) protection of personal data.