THE PROTECTION OF CHILDREN AS CONSUMERS IN THE REPUBLIC OF SLOVENIA

draws attention to some of the most recent developments in the area of European consumer protection.

I. THE PROTECTION OF CHILDREN AS CONSUMERS IN THE REPUBLIC OF SLOVENIA

1. Consumer Protection Act (ZVPot)

In the Republic of Slovenia, the main piece of national legislation in the area of consumer protection is the Consumer Protection Act (ZVPot),[8] which regulates the rights of consumers in respect of supply, sale and other forms of trade in goods and services by companies and lays down the obligation of state bodies and other entities in order to guarantee these rights (the first paragraph of Article 1 of ZVPot). A consumer is defined as any natural person who acquires or uses goods or services for purposes outside their occupational or gainful activity (the second paragraph of Article 1 of ZVPot), without any additional qualifications regarding their age or other personal characteristics. Therefore, provisions regulating consumer rights apply equally to children and adults, except where the law explicitly states otherwise. Such is the case of Article 15 of ZVPot, which prohibits advertising that would include elements which cause or could cause physical, mental or other harm to children, or elements which exploit or could exploit their trusting nature or lack of experience. If the Market Inspectorate of the Republic of Slovenia or any other competent inspection body finds that advertising includes such elements, it shall issue a decision temporarily prohibiting such advertising of goods or services, or the publication of such advertisement, if it has not yet been published, but its publication is imminent (Article 73 of ZVPot). The entity (legal entity, sole trader or self-employed person) responsible for such an offence may be sanctioned with a fine of EUR 3,000 to EUR 40,000, while the responsible person of the legal entity or the responsible person of the sole trader may be sanctioned with a fine of EUR 1,200 to EUR 4,000 for the same offence (Article 77 of ZVPot). Except for this relatively broadly-drafted provision, ZVPot fails to offer any special protection to children as consumers that would consider particular circumstances arising from the stage of their personal development.

In May 2021, the Slovenian Ministry of Economic Development and Technology drafted a proposal for a completely new version of the Consumer Protection Act, which would replace the existing ZVPot adopted in 1998. In its proposal, the Ministry stated that in light of technological, economic and market developments, Slovenian legislation no longer provides sufficient protection to consumers and is in dire need of updates and amendments that would bring it into line with the EU legislation and national legislation in the other Member States.

While it aims to address certain issues that are currently regulated insufficiently (a requirement to inform consumers of any algorithm-based price adjustments or for-pay higher rankings or

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more visible placements of products, prohibition of false ratings or recommendations, etc.), the proposal contains no additional provisions that would explicitly protect underage consumers.[9]

2. Mass Media Act (ZMed) and Audiovisual Media Services Act (ZAvMS)

While ZVPot provisions refer to advertising in general, the Mass Media Act (ZMed)[10]

further regulates advertising in the mass media[11] with more precisely defined requirements regarding advertisements targeted primarily at children or in which children appear. Namely, such advertisements must not contain scenes of violence or pornography or any other content that could damage the children's health or mental and physical development or otherwise have a negative effect on them. Moreover, advertising must not morally or mentally affect the children and, therefore, must not encourage children to purchase products or services by exploiting their inexperience and credulity; encourage children to convince their parents or any other person to purchase products or services; exploit children's special trust in parents, teachers or any other persons; unjustifiably show children in dangerous situations (Article 49 of ZMed). The same criteria apply to teleshopping, which may not offer minors the opportunity to conclude contracts for the purchase or rent of goods or services (the second paragraph of Article 95 of ZMed). The access to pornographic content is explicitly limited for both printed and electronic publications, where it must be offered in such a way that minors cannot see, buy or access it (where applicable, by means of technical protection) (the eighth paragraph of Article 84 of ZMed).

The most comprehensive provisions protecting the child's best interest in the digital environment are stipulated under the Audiovisual Media Services Act (ZAvMS),[12] which was last amended with the Act Amending the Audiovisual Media Services Act (ZAvMS-B).[13] The amending act, which came into force in January 2022, transposed the amended Audiovisual Media Services Directive[14] into Slovenian legal order, thus bringing Slovenian legislation into line with the EU standards of protection.[15] The most crucial change in terms of consumer protection is the inclusion of video-sharing platform services amongst services regulated under this act, whereas the definition and the scope of video-sharing platforms are identical to that under the Audiovisual Media Services Directive (Article 3 of ZAvMS). The regulation under the previous version of the ZAvMS covered only television channels, other linear audiovisual media services and on-demand audiovisual media services, thus receiving much criticism for failing to bring influencer marketing under the scope of the act and failing to protect especially young users of video-sharing platforms. Before the amendment with ZAvMS-B, social media services were considered a platform and not media (consequently, the protection under the ZAvMS did not apply).[16]

The ZAvMS makes a notable effort to guarantee adequate protection to children and minors by including a general provision on the protection of their interests amongst other general provisions, thus emphasising its importance and the requirement to interpret other provisions of ZAvMS accordingly. Furthermore, it contains a special Chapter Three on the protection of children, disabled persons and vulnerable social groups. Article 10 of ZAvMS thus declares that children and minors are granted special protection under this Act and that the interests of

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children and minors take precedence over all other rights and considerations. It prohibits all audiovisual media services from impairing the physical, mental or moral development of children or minors and from subjecting them to arbitrary or unlawful interference in their privacy, family or home or unlawful attacks on their honour and reputation. These general requirements and principles are reflected in other provisions of ZAvMS referring to, inter alia, the content of television programmes, audiovisual commercial communications, television advertising and teleshopping, product placement, etc. Under Article 14 of ZAvMS, all programmes that might seriously impair the physical, mental or moral development of children and minors must be classified under one of the following categories: suitable for all children under parental supervision, unsuitable for children under 12 years of age, unsuitable for children under 15 years of age, unsuitable for children under 18 years of age, and adult content (which includes the most harmful content, such as gratuitous violence and pornography).

Except for the last category, the programmes must be preceded by an appropriate acoustic and visual warning and identified by the presence of an appropriate visual symbol throughout their duration. Programmes that are not suitable for children under 15 years of age may be broadcast only between 8 pm and 5 am, and programmes that are not suitable for children under 18 years of age may be broadcast only between 11 pm and 5 am (with the exception of non-linear audiovisual media services). The adult content may be broadcast only via channels with restricted access by means of a PIN code system or another equivalent system of protection that cannot be removed by the user and that enables access only for persons that have permission to view (code, password, etc.). Such permission may only be granted to adults. The provider of audiovisual media services is responsible for ensuring technical protection, the appropriate time of broadcast and the appropriate warnings and symbols, except where unsuitable content is impossible to predict due to live streaming.

In addition to general restrictions concerning the content of programmes, children are also protected when targeted as potential consumers. Thus, audiovisual commercial communications must not directly encourage minors to buy or hire a product or service by exploiting their inexperience or credulity; directly encourage them to persuade their parents or others to purchase the goods or services being advertised; exploit the special trust minors place in parents, teachers or other persons; or unreasonably show minors in dangerous situations.

Teleshopping must also adhere to these criteria and may not allow minors to conclude contracts on the purchase or rental of goods or services. The volume of television advertising during children's programmes is also restricted, and interruptions of children's programmes with teleshopping are prohibited. Furthermore, providers are required to develop and publish codes of conduct regarding inappropriate audiovisual commercial communications, accompanying or included in children's programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended. These codes of conduct must be formulated in such a way to allow children to develop healthy eating habits in line with the nutritional guidelines published by the minister responsible for health (Articles 21, 23, 28 and 31 of ZAvMS).

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The provisions cited above were not subject to any significant changes from the previously valid version of ZAvMS, offering basically the same level of protection and demonstrating that the interests of children-consumers were granted a high level of protection under Slovenian legislation even before the last amendments. However, some general changes introduced with the ZAvMS-B are worth noting for easing some limitations and lowering some restrictions.

Thus, under the previous legislation, the total volume of television advertising and teleshopping on a television channel was limited to 12 minutes per hour or 10 minutes per hour (7 minutes per hour between 6 and 11 pm) on the national radio and television station. Following the amendment, it is limited to 20 % of the time between 6 am and 6 pm and 20 % of the time between 6 pm and midnight (or 15 % on the national radio and television station for each time slot) (Article 32 of ZAvMS). Furthermore, product placement was previously prohibited as a rule, with some exceptions,[17] whereas it is now generally allowed, subject to certain conditions (e.g. it is still prohibited in children, religious, news and current affairs programmes, consumer affairs programmes, and programmes of advice) (Article 26 of ZAvMS).

The great importance placed on protecting children targeted by advertising in the mass media or subjected to inappropriate audiovisual media services is apparent from the comparatively high fines threatening the offenders of cited provisions. In the case of violations under ZMed, a broadcaster or a publisher responsible shall be punished with a fine of EUR 1,050 to EUR 83,500 (EUR 350 to EUR 450 in the case of a private individual) (Article 129 of ZMed). For violations of ZAvMS provisions, legal persons shall be fined in the amount of EUR 6,000 to EUR 60,000, individual sole traders or individuals who perform activities independently in the amount of EUR 3,000 to EUR 30,000, the responsible person of a legal person, of individual sole traders or of individuals who perform activities independently, and the responsible person of state authority or self-governing local community in the amount of EUR 600 and an individual in the amount of EUR 300 (Article 43 of ZAvMS).

3. The regulation of covert advertising

In the Republic of Slovenia, there are no provisions explicitly prohibiting covert advertising targeted at children, as it is already banned regardless of the age of its target group or person.

Thus, Article 15.a of ZVPot requires that all advertising messages which are part of or represent an information society service clearly indicate the advertising nature of the message, as well as the name of the entity that ordered the advertisement (unless this is regulated by some other regulation to the same or broader extent). Where an advertising communication contains special offers (price discounts, premiums, gifts and similar), these must be clearly recognisable and the conditions for their acquisition accessible and clearly and unambiguously indicated.

The same applies to authorised promotional competitions or gambling. Article 47 of ZMed takes an even stricter tone by declaring that covert advertising intended to convince the reader, listener or viewer that a particular advertisement is not advertising shall be prohibited. The person who commissioned the publication and the executive editor shall be held accountable for covert advertising, and the assumption applies that any covert advertising is intentional. In advertising, it is prohibited to employ techniques that prevent readers, listeners and viewers from consciously recognising advertising as such. Article 19 of ZAvMS similarly prohibits

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surreptitious or covert audiovisual commercial communication and the use of subliminal techniques that do not allow for conscious recognition of such communications to users. Covert advertising is punishable by fines of up to EUR 40,000 (Article 77 of ZVPot), EUR 62,600 (Article 130 of ZMed) or EUR 30,000 (Article 43a of ZAvMS).

4. Slovenian Advertising Codex

Slovenian legislation in the area of advertising is supplemented with the Slovenian Advertising Codex,[18] an act of self-regulation adopted under the auspices of the Slovenian Advertising Chamber. The Codex established advertising standards for the Slovenian advertising industry, which must not contravene or interfere with the legislation, but, instead, provide another level of regulation, explanations and best practices, especially in the case of a legal vacuum. Alleged violations of these standards are assessed by the Advertising Tribunal following a proposal by any legal entity or individual, regardless of their membership status in the Slovenian Advertising Chamber.[19] Such self-regulation represents an additional – also cheaper and more flexible – option for alternative dispute resolution. Up to June 2022, the Advertising Tribunal has issued almost 400 decisions assessing the compliance of advertisements with the Codex.[20]

In addition to general rules advocating for the legality, dignity, fairness, truthfulness, privacy, and other social and moral values to be respected in advertising, the Codex contains a special part dedicated to the special protection of children. The rules are based on the presumption that children and minors under the age of 16 do not possess the knowledge, experience and capacity for mature decision-making and that advertising which directly or indirectly targets them must take into account their specific characteristics, especially how they perceive and respond to the advertising. With that in mind, the Codex provides a list of prohibitions and restrictions, including the following:

Products that are unsuitable for children shall not be advertised in media intended for children;

advertisements intended for children shall not be published in media, the content of which is unsuitable for children.

Advertising shall not be used to collect personal data of children or their family members without the prior written consent of their parents.

Advertisements shall not undermine the authority, responsibility or judgment of parents.

Advertisements shall not directly instruct children to purchase a product, influence children to pressure their parents to purchase a product, create an impression that a child will be inferior or less popular than their peers without purchasing a product, or invite them to collect certain stickers, wrappings, coupons and similar.

Products and prices shall not be presented as being easily affordable (by the use of words such as "only" or "just").

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Advertisements shall not encourage an improper attitude toward road safety (e.g. by showing children in the street without supervision if they are obviously too young to ensure their own safety, children playing in the street, crossing the street outside of zebra crossing or without paying attention to the traffic, children driving a car, etc.) or general safety (e.g. by showing children learning through a window or over a fence, climbing on dangerous objects, using matches or lighters that could cause burns or other injuries, talking to strangers or entering unknown buildings), unless such conduct is used to demonstrate what actions should be avoided.

The advertising of food and drinks shall not promote unhealthy eating habits, actively encourage children to eat or drink before going to bed, frequently eat sweets and snacks, eat more than usual, or mislead children regarding possible benefits of consuming the products.[21]

The Advertising Tribunal decided on the proper interpretation and alleged violations of these rules in several cases, although no infringements were identified as a result. Some examples of the tribunal's decisions are the following:

The applicant claimed that the advertisement by a meat processing company stating that the product is "Made with plenty of love "and "For a tasty and healthy bite" is misleading as meat processing can never be associated with love or health (but only with the suffering of animals and illnesses resulting from eating meat), while it also promotes unhealthy eating habits of children. The tribunal found the claim unjustified.[22]

The series of advertisements "Better eccentric than thirsty", in which children did something

"crazy" to prevent others from drinking their juice (the product), including telling their father that they won the lottery or mother that they got a tattoo, was not found to constitute the violation of Codex rules.[23]

The advertisement by UNICEF using the slogan "The vaccine is more than just a vaccine. It is a mother's hug." was not considered a manipulation implying that the unvaccinated children would be deprived of a mother's hug, nor was it considered a violation of the rule that advertisements shall not undermine the authority, responsibility or judgment of parents. It did not address children but adults, who are capable of deciding whether they want to donate financial contributions for the vaccination of children in third-world countries.[24]

Given the number of cases brought before the tribunal, such an outcome indicates that the advertisers operating in the Republic of Slovenia are generally mindful of the rules protecting children-consumers and go to proper lengths to protect their interests.

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III. RECENT DEVELOPMENTS IN THE AREA OF CHILDREN-CONSUMERS