First, the difference between false advertising and false propaganda
The so-called false advertising refers to the advertising activities of advertisers, advertising agents and publishers on goods or services containing false contents in a deceptive or misleading way. According to the official reply of the State Administration for Industry and Commerce on the identification and handling of false advertisements, generally speaking, false advertisements should be identified from the following two aspects:
1. Whether the products and services advertised are objective and true;
2, the main contents of the products and services (including products and services can reach the standard, utility, the use of registered trademarks, awards, as well as product manufacturers and service providers, etc ... ) It's true. If an advertisement fabricates facts, falsely publicizes products and services that do not exist, or the main contents of the advertised products and services are inconsistent with the facts, it shall be deemed as false advertisements. False propaganda refers to the propaganda activities in which operators make untrue or misleading representations of the main contents of goods or services by advertising or other methods in order to seek illegal benefits, which leads to or is enough to lead consumers to misunderstand and make wrong judgments. From the legal point of view, both belong to the category of expression of will, and both belong to false, deceptive or misleading expression of will. But there are obvious differences between them:
(A) the scope of adjustment is different.
False advertising is a form of false propaganda, which includes false advertising. False advertising must be false propaganda, but false propaganda is not necessarily false advertising. False advertising belongs to a concept, and false propaganda belongs to a concept. The false propaganda stipulated in the first paragraph of Article 9 of the Anti-Unfair Competition Law means that "business operators shall not make misleading false propaganda on the quality, composition, performance, use, producer, expiration date and place of origin of goods by advertising or other methods". Article 3 of the Advertising Law stipulates that advertisements should be truthful and lawful, and express their contents in a healthy way, which meets the requirements of building socialist spiritual civilization and promoting the excellent traditional culture of the Chinese nation. Article 4 stipulates that advertisements shall not contain false or misleading contents, and shall not deceive or mislead consumers. Article 3 of the Regulations on Advertising Management stipulates that advertising content must be true, healthy, clear and easy to understand, and users and consumers shall not be deceived in any form. Obviously, false advertising is just a form of false propaganda.
(2) The subjects of adjustment are different.
The main bodies of false advertisements are advertisers (commodity operators and service providers), advertising operators and publishers; The subject of false propaganda is usually commodity operators or service providers, that is, legal persons, other economic organizations and individuals engaged in commodity management or profit-making services. Therefore, the subject of false advertising includes the subject of false propaganda, and the scope of the subject of false propaganda is relatively narrow.
(3) The objects of adjustment are different.
False advertising adjusts all advertising behaviors, that is, "commercial advertisements in which commodity operators or service providers directly or indirectly introduce their products or services through certain media and forms at their own expense". False propaganda adjusts propaganda behavior, and advertisements or other means have covered all kinds of propaganda forms that can be known to the public. Other ways mainly include news conference, promotion meeting of new products or services, product information conference, trade fair, promotion activities, hiring others or inducing others to sell (commonly known as "child care"), misleading reports by mass media (propaganda and reporting of goods by non-commercial advertising means such as broadcasting news, interviews and publishing articles), special reports, lectures or symposiums introducing new products or services, etc. It can be seen that the object of false propaganda is far more than the object of false advertising.
(4) The applicable legal norms are different.
For false advertising, China has advertising law and advertising management regulations to regulate and standardize advertising activities and protect the legitimate rights and interests of consumers and operators. For false propaganda, there is no special legislation, and it can only be adjusted according to the Anti-Unfair Competition Law, the Consumer Protection Law and the Product Quality Law. Therefore, false propaganda other than advertising does not belong to the scope of adjustment of the Advertising Law. At the same time, because false advertising is a form of false propaganda, the laws used to regulate false propaganda, such as Anti-Unfair Competition Law, Consumer Protection Law and Product Quality Law, are all applicable to false advertising.
(5) Different legal responsibilities.
As far as false advertisements are concerned, the Anti-Unfair Competition Law, the Consumer Protection Law, the Product Quality Law and the Advertising Law stipulate civil liability and administrative liability, while the Product Quality Law and the Advertising Law also stipulate corresponding criminal liability. Article 222 of China's criminal law also specifically stipulates the crime of false advertising, that is, advertisers, advertising agents and publishers use advertisements to make false propaganda of goods or services in violation of state regulations, and the circumstances are serious. Regarding false propaganda, the Anti-Unfair Competition Law, the Consumer Protection Law and the Product Quality Law mainly stipulate the civil liability and administrative liability of false propaganda activities other than false advertisements.
Second, correctly understand the relationship between false advertising and false propaganda.
As mentioned above, false advertising and false propaganda are both related and different, belonging to the species relationship. A correct understanding of the relationship between them can unveil the vague veil between them and make us more aware of false advertisements and false propaganda, which is of great legal significance to our practice.
1 can make us realize their different harms to society ideologically.
Generally speaking, compared with other forms of false propaganda, false advertising has a wide audience, rapid spread and great social impact, which is relatively harmful to society. Of course, this situation is not absolute. Besides some advertisements, other forms of false propaganda, such as product reports, symposiums and misleading reports of mass media, are more harmful than false advertisements. Because this kind of propaganda is covered with a seemingly objective and neutral coat, it seems to have no commercial atmosphere. In fact, they are all hidden advertisements, which are more misleading, deceptive, harmful and have a worse negative social impact. It not only harms the rights and interests of consumers, but also harms the interests of law-abiding operators in the same industry.
2. Provide a basis for us to apply the law correctly.
As mentioned above, false advertising and false propaganda are regulated by many laws, and each law regulates them from different angles. The Anti-Unfair Competition Law, the Consumer Protection Law and the Product Quality Law all regulate false advertisements, which are not only regulated by the above laws, but also regulated by the Advertising Law. Compared with other laws mentioned above, the Advertising Law is equivalent to a special law, which can be applied first, that is, we have an extra layer of legal protection for false advertisements, but other false advertisements except advertisements cannot be applied.
There are more than these differences between false propaganda and false advertising, and there are more classification standards. However, the ultimate goal is to help you distinguish between false propaganda and false advertising. In addition, the responsibility of false propaganda and false advertising in civil litigation is related to responsibility. Only by defining them accurately can we better regulate the commodity market and protect the legitimate rights and interests of consumers.
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