Legal Information

The federal law ‘On Advertising’ (article 18, item 1) sets forth an explicit ban on distribution of advertising via telecommunications networks without prior consent of customers. According to this law, ‘distribution of advertising via telecommunications networks, including phone, facsimile, and mobile radio telephone communications, is only allowed with prior consent of the customer or addressee on reception of advertising.’ SMS advertising is recognized as distributed without prior consent of the customer or addressee if the advertiser fails to prove that such consent has been granted.

According to item 6, article 38 of the law ‘On Advertising’, the advertiser shall be liable for distributing unfair advertising that includes also ‘advertising of goods using prohibited means’ (article 5, items 2 and 3). Article 18 of the federal law ‘On Advertising’ may be construed as prohibiting distribution of advertising using specified means (via telecommunications networks without having obtained prior consent of the customer). Thus, SMS advertiser may be brought to responsibility also for the dissemination of spam.

In addition to the federal law ‘On Advertising’, the distribution of information is also regulated by the federal law ‘On Information, Information Technologies, and Protection of Information’. In accordance with article 10 of this law, the information disseminated without using mass media shall contain reliable data about its owner or the person that disseminates this information in the form and the amount sufficient for identifying that person. If information is disseminated using the means than enable recipients of information, including mail and e-mail messages, to be identified, the person/entity that distributes information via SMS or conducting SMS-based advertising campaigns, must provide to the recipient of that information an option to refuse from receiving the information.

It should be stressed that if messages distribute the content which violates Russian laws (includes calls to terrorist activities and violence, waging extremist activities, unleashing aggressive war, etc.), the person performing such distribution may be subject to prosecution. In addition, article 34 of the Criminal Code of the Russian Federation stipulates that ‘the person that is not a subject of crime but was involved in committing a crime may be subject to criminal punishment for that crime as its organizer, instigator, or accomplice.’ In other words, a person that organizes any distribution of information including distribution of advertising via SMS may be subject to criminal punishment as an accomplice if the content of the SMS-based advertising or information distribution violates the law in effect.