OLEG MAMONT, HEAD OF PRACTICE, A.T. LEGAL, ANSWERS THE KOMMERSANT’S QUESTIONS:

On October 8 the FAS of Russia published on regulation.gov.ru a draft decree of the Russian Federation government about modification of rules for consideration of cases related to advertising legislation violation by the FAS https://regulation.gov.ru/projects#npa=121246

The draft concerns the so-called law on landings - "On the activities of foreign persons in the information and telecommunications network of the Internet on the territory of Russia". It was signed by Russian President Vladimir Putin on July 1. The document obliges foreign online platforms with attendance from 500 thousand users from Russia to open official branches or representative offices in Russia from January 1, 2022. For example, Google, Facebook and Twitter fall under this requirement - despite the presence of Russian legal entities, the law states that "they are not representative offices in the full sense. If a foreign company fails to comply with the requirements of this or other laws, it may be subjected to one or more sanctions, including a ban on the distribution of advertising on that resource in Russia. We wrote about the landing here - https://www.kommersant.ru/doc/4825137

QUESTIONS:
DO WE UNDERSTAND CORRECTLY THAT THE NEW DOCUMENT INTRODUCED BY THE FAS APPROVES THE "LANDING" PROCEDURE?
OLEG MAMONT: "Yes, changes are being made to the existing FAS Regulations on the consideration of cases on advertising law violations, under the new Law on Advertising concerning the disregard by foreign persons of Roskomnadzor bans on advertising propagation.”

WHAT IT WILL LOOK LIKE - THE BAN ON ADVERTISING FOR FOREIGN COMPANIES THAT HAVE NOT OPENED A REPRESENTATIVE OFFICE. WILL IT BE INCLUDED IN THE LAW ON ADVERTISING?
OLEG MAMONT: "Yes, these bans have already been stipulated by Federal Law No. 347-FZ of 02.07.2021 "On Amendments to the Federal Law" On Advertising", in particular the following is established:

  • Advertising addressed to Russian consumers on a foreign person's information resource is not allowed if Roskomnadzor has made a decision to ban it and this decision is included in the list of foreign persons operating on the Internet in Russia, under Law N 236-FZ (part 10.4 Art. 5 of the Law on Advertising);
  • Advertising of foreign persons operating in the Internet on the territory of Russia and (or) their information resources is not allowed if Roskomnadzor has decided on such a ban and this decision is included in the list of such foreign persons under Law N 236-FZ (p. 11, Article 7 of the Advertising Law).

Exactly for these violations the FAS is empowered to make decisions on banning.”

THE DECISION TO BAN ADVERTISING WILL BE MADE BY THE FEDERAL ANTIMONOPOLY SERVICE AFTER THE ROSKOMNADZOR'S STATEMENT, WITHOUT THE PARTICIPATION OF THE COMPANY ITSELF, WITHIN SEVEN DAYS? OR HAVE WE MISUNDERSTOOD THE PROCEDURE FROM THEIR WORDING?
OLEG MAMONT: "You got the point right. Roskomnadzor submits a request to the FAS of Russia regarding prohibition to distribute advertising and revealed facts of advertising containing violation of part 10.4 article 5 and (or) point 11 article 7 of the Advertising Law. Such a request must be reviewed within no more than 7 business days from the date of receipt of the request from Roskomnadzor.
If the FAS reveals and confirms the violations of the Law on Advertising, the decision on the case is made without the participation of the offender.  The FAS decision is also issued within 7 working days from the date of receipt of the Roskomnadzor's request, in its entirety.
The Law on Advertising provides that the decision and order of FAS can be challenged in court or arbitration court within three months from the date of the decision, issuance of the order. However, their appeal does not suspend their action.”

HOW CAN THE NEW DOCUMENT AFFECT THE MARKET IN GENERAL AND FOREIGN COMPANIES IN PARTICULAR, CAN IT BE PERCEIVED AS AN ELEMENT OF PRESSURE TO OPEN THEIR OWN REPRESENTATIVE OFFICES IN RUSSIA?
OLEG MAMONT: "The new document concerns the above-mentioned violations of part 10.4 of Article 5 and/or point 11 of Article 7 of the Law on Advertising.

These are measures to force foreign Internet companies to comply with the Russian legislation. How it will affect the advertising market is hard to predict. It depends both on the actions of Roskomnadzor, decisions of the FAS of Russia and actions of foreign Internet companies. If the FAS decides to prohibit distribution of advertising and includes information on such a decision in the list of foreign Internet companies, it may be followed by measures provided by Federal law № 236-ФЗ dated July 1, 2021 "On activity of foreign entities in the Internet on territory of Russian Federation" which is in force since July 01, 2021 including full or partial blocking; restriction on money transfers and receiving payments from Russian individuals and organizations.”

You can see more details at: https://www.kommersant.ru/doc/5029695

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