by Filipe Fonteles Cabral
June 01, 2012
In early 2012 we had the opportunity to participate in a judgment as rare as it was interesting at the National Council for Advertising Self-Regulation – CONAR.
A telecommunications company wanted to bring complaint against a competitor’s television advertisement. According to the Plaintiff, the advertisement did not contain sufficient information on the promotion disclosed. So far, all quite standard.
The novelty was the fact that the same advertisement had been judged a few weeks earlier in a different complaint, initiated at the request of consumers, with a final decision already having been given.
This is rare because, on identifying two complaints against the same advertisement, the Executive Secretariat of CONAR, authorized by the Executive Vice President, attaches the new complaint to the old one so that they could be judged together. Since complaints are often filed shortly after the first broadcasting of a particular advertisement, they are usually joined before any substantive examination.
In Complaint 303/11, however, the competitor delayed in its presentation. When it was made, the CONAR Ethics Council had already issued its decision on the advertisement and, in the absence of an appeal, the ruling was made final.
On filing its defense, as would be expected, the Advertiser raised a preliminary res judicata, in spite of the absence of this concept in the Internal Rules for the Ethics Council (RICE) and in the Brazilian Advertising Self-Regulation Code (CBAP).
RICE contains basic guidelines on processing and proclaims the principles of "simplicity, procedural economy and agility" (art. 13). On the issue of res judicata, the Rules say nothing.
In cases of omission, RICE provides for the supplementary application of general principles of law and the Code of Civil Procedure.
Problem solved? In part. The heterogeneous composition of the Ethics Council should be included in the equation, which is composed mostly of members without a Bachelor´s degree in law.
If, on the one hand, the heterogeneous formation of the Ethics Council enriches and sharpens the debate, then on the other, the lack of a legal basis can turn everyday issues into a sea of uncertainty.
And this is indeed what happened. In the judgment session, after the oral arguments by the parties had been heard, a heated debate began on the issue of res judicata. The tone of the discussions can be measured by a declaration by one of the Members still in the presence of the parties: "The Advertiser is very arrogant to claim that an advertisement is not subject to examination by the Ethics Council."
The stage had been set: out of 12 members present, at least nine showed anger or some kind of discomfort with the so-called "res judicata". The clarification given by the Advertiser’s attorneys relieved tensions, but the incredulity and distrust still hovered in the air when the parties and their attorneys left the room for the final debate and vote (in accordance with Article 36, §3 of RICE, the parties cannot witness the outcome of the sessions).
One can imagine that this last step of the judgment did not go smoothly either, given that it took an unbelievable 40 minutes, four times the average. At last, the result was announced: the preliminary res judicata was accepted, unanimously.
The episode clearly illustrates the efficiency of CONAR and intelligence of its structure. In addition to the Members that examine and judge the complaints, the trial sessions are always accompanied by a member of the Legal Department of the entity.
The Legal Department consists of career employees of CONAR, all attorneys who assist the Members in the course of complaints. In the judgment sessions they carry out the role of "law inspector", without voting rights, but with the prerogative to intervene when necessary, like the Public Prosecutor in court hearings.
They are, therefore, the final ingredient to the success of the recipe. It ensures the healthy synergy between Advertising and Law, aiming to regulate ethical conduct in this market segment.
Now in its 32nd year, CONAR exudes maturity and stands out as an example amongst its foreign counterparts.
Expeditious and low cost, the entity is undoubtedly an excellent alternative for resolving disputes in advertising.