To say that there is no special advertising act in Bosnia and Herzegovina (“BiH”) is not completely true. Namely, certain forms of (illegal) advertising are regulated by the Prohibited Advertising Act. This Act regulates the protection of merchants from illicit advertising, the protection of procedures and determines forms of illicit advertising. On the other hand, advertising as such is regulated indirectly at the level of the Federation. In this regard, the Consumer Protection Act is applicable, considering that BiH is one of few European countries that has neither a media act nor an electronic media act. For special types of advertising (certain products or services – e.g., tobacco, alcohol, pharmaceuticals, etc.), sectoral acts apply.
According to the Consumer Protection Act, advertising is all and any communication related to a trade, business, craft, or profession that aims to promote the procurement of goods and services, including all forms of real estate. Additionally, advertising is an offer of goods or services in any form, which means that the work of influencers is advertising too.
Advertising of goods and services must not conflict with laws and other regulations, must not insult human dignity, nor violate basic human, economic, social and cultural rights. Ads must not contain any statement or visible display that would directly mislead consumers.
In terms of the Prohibited Advertising Act, advertising is any presentation, regardless of its form (including via influencer channels on social networks, etc.), which is created by a business or by an independent professional and which promotes the sales of goods or services, including real estate, rights and duties.
In this regard, an advertising message is any notice that contains a direct or indirect recommendation of a merchant regarding their own activities, goods, or services, regardless of the form, manner, or means of message transmission. Meanwhile, the advertiser is any legal entity or natural person that recommends their own goods, services or activities through advertising.
Due to the unfortunate formulation of the term “advertiser”, it cannot be said that the Prohibited Advertising Act applies to influencers.
This Act distinguishes between two types of prohibited advertising: (i) misleading advertising, and (ii) prohibited comparative advertising. While misleading advertising is completely prohibited, comparative advertising is only prohibited in certain cases.
The Prohibited Advertising Act allows a merchant to file an individual lawsuit against prohibited advertising, but it also foresees a specific system of collective protection of merchants. Namely, to avoid individual decisions in this kind of dispute being applied only between the parties of the lawsuit, the Act, in accordance with the provisions of Directive 2006/114/EC, introduces a mechanism that allows all affected persons who have a legal interest in the protection against illegal advertising to file a lawsuit requesting the court to order the cessation of such advertising.
The court does not assess whether the disputed advertising caused damage or whether it was harmful. If the court finds that the claim has merit, it will order the defendant (individual merchant or a group of merchants from the same economic sector) to halt the publication of misleading or prohibited comparative advertising. The judgment obliges the defendant to refrain from the same or similar advertising in relation to all and any merchants in the future. As there is no special advertising act in BiH, the relationship between those who their product or service and the influencer who advertises that product or service through their channels on behalf of the merchant remains unclear. It will be especially interesting to see how the legislator divides the liability between the merchant and the influencer, in the absence of explicit contractual provisions from a so-called influencer agreement (read our text on the status of influencers in Serbia).
There are numerous legal challenges for influencers and the companies they cooperate with. The legal framework is still being developed in most jurisdictions, especially in Western Balkans, which makes it particularly difficult to carry out cross-border influencer marketing campaigns in a legally compliant manner.
Advertising in BiH is regulated by several laws, bylaws, and codes that are neither mutually harmonized nor harmonized with the European Acquis Communautaire. Therefore, the laws in BiH are not able to respond to the growing needs of regulating modern advertising practices such as influencer marketing. Without a specific act, it will always be complicated to regulate expanding advertising market.
