Law, Lawyers, Digital Commercial Advertising, Cases, and LegalTech
By: Prof. Dr. Camilo Alfonso Escobar Mora, founder of LEGADLLY, an executive program for lawyers on legal validity and the effectiveness of the Rule of Law, with examples of digital advertising — legadlly.ca.
Contact: camilolaw@legadlly.ca
What is known as electronic commerce—meaning the performance of commercial legal acts through electronic means, including digital platforms—is primarily based on (commercial) digital advertising. A lawyer capable of handling legal matters, both preventive and corrective, in this field—which generally involves ensuring that commercial legal standards align with the dynamics of digital information and communication technologies (ICT)—can make any business case viable within the dynamics of artificial intelligence (AI). This is because everything is legally connected to advertising, insofar as it constitutes any form of promoting a business enterprise.
Advertising of this legal nature entails the complexity of having to be interpreted through the abstract logic of communication aimed at promoting a for-profit organization under presumably professional commercial activities, and through its concrete expression in each legal relationship in which it is present. Hence the debate as to whether advertising is information or communication, and the corresponding extent to which it is binding. It is an enforceable act depending on the legal effect it produces in each case, but it is always a form of communication, which includes information whenever objective elements are transmitted through it.
There is no such thing as “consumer law” as a separate and autonomous body of law—let us move beyond that notion. There is law, which must be applied as appropriate in each case. This is the necessary integrality required to address digital commercial advertising from a legal standpoint—that is, to properly identify the legal issue and its corresponding solution in each advertising matter. Attempting, for example, to interpret and address the form of consent of the consumer (in commercial matters) and of the business enterprise solely through rules relating to so-called “consumer relations” does not allow lawyers—legal professionals trained in the knowledge and application of the law—to approach such matters with due diligence.
The same applies to so-called “advertising self-regulation.” It is a form of compliance with the law when it aligns with what is juridically valid—that is, with the form of freedom (what is permitted), and within it, the form of limitation (what is prohibited), legally speaking. When something is unlawful, it has a legal effect: it becomes an act characterized by fault, to be addressed as appropriate in favor of the party negatively affected. However, it is not an exercise of (legal) freedom in defining and, in general, in establishing the legal advertising relationship (connected to digital commercial advertising). The solution is not to consider, for example, that a national or international advertising self-regulation code constitutes the legal regime governing commercial advertising. The entirety of the law as applied to advertising is the manner in which it must legally exist according to the specific case. The same applies to judicial decisions, administrative rulings, constitutional mechanisms, internationally agreed matters, special regulatory developments, legislative initiatives, or commercial customs. These are all part of the law, but they do not constitute the whole of the juridical order; they are not, in themselves, the entirety of the law. Lawyers must possess professional-level legal clarity in order to make advertising cases legally viable, both preventively and correctively.
Naturally, it is necessary to concretize the law according to the specific characteristics of digital commercial advertising. There must be indicators (elements) of compliance and non-compliance with the law in this context. This form of legal knowledge can even be incorporated and processed through LegalTech (when valid and aligned with juridical principles), which enhances the definitive professional work of lawyers when employed diligently and lawfully. By doing so, lawyers can detect and resolve legal issues with high efficiency, becoming indispensable professionals. Law is universal. The legal profession is universal. The lawyer (as a legal professional) is universal. Professional legal practice in the face of digital commercial advertising (globally), combined with the diligent and lawful use of LegalTech, is decisive.