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Due to the changes in the law for advertising about Sex Work we want to make a series of clarifications about it and make it clear that on our website at no time There has been and will not be any promotion of prostitution, promotion or normalization of sexual violence or publication of advertisements that present women in a humiliating manner.
Article 11. Prevention and awareness in the advertising field.
1. Advertising that uses gender stereotypes that encourage or normalize sexual violence against women, girls, and boys will be considered illegal, as well as that which constitutes promotion of prostitution in the terms established in Law 34/1998, of November 11, General Advertising Law.
This law apparently prohibits the advertising of prostitution, but refers us to the 1998 law which clearly states the following:
Jurisprudence
Article 3. Illegal advertising.
The following is illegal:
a) Advertising that attacks the dignity of the person or violates the values and rights recognized in the Constitution, especially those referred to in articles 14, 18 and 20, paragraph 4. Included in the previous provision are advertisements that present women in a humiliating way, either by using their body or parts thereof as a mere object unrelated to the product being promoted, or their image associated with stereotyped behaviors that violate the foundations of our legal system, contributing to generating the violence referred to in Organic Law 1/2004, of December 28, on Measures for Comprehensive Protection against Gender Violence and the Organic Law guaranteeing comprehensive sexual freedom.
Likewise, any form of advertising that contributes to generating violence or discrimination in any of its manifestations against minors, or promotes sexist, racist, aesthetic, homophobic, transphobic or disability-related stereotypes, as well as that which promotes prostitution, will be understood to be included in the previous provision.
b) Advertising aimed at minors that incites them to buy a good or service, exploiting their inexperience or credulity, or in which they appear persuading parents or guardians to buy. Children may not be shown in dangerous situations without a justified reason. It should not mislead about the characteristics of the products, their safety, or the capacity and skills necessary for the child to use them without causing harm to themselves or others.
c) Subliminal advertising.
d) Advertising that infringes on the provisions of the regulations governing the advertising of certain products, goods, activities or services.
e) Misleading advertising, unfair advertising and aggressive advertising, which shall be considered acts of unfair competition in the terms contemplated in the Unfair Competition Law.
Well, the legal debate is very diverse since since 1998 the promotion of prostitution has been prohibited, none of us, advertisers, have ever been sanctioned, sued or condemned simply because from our websites the law has not been violated since we have NEVER promoted (and I quote the RAE's definition of promote: promote. ‘To promote [something], seeking its achievement’ and ‘to raise [someone] to a higher position’. Irregular verb: it is conjugated like mover) prostitution.
This leads one to believe that the advertising activity carried out until now was totally within the law, and that even if we continued working in the same way, we would still be within the law.
However, it is true that we are in a very different moment from 1998 and many colleagues have chosen to close their businesses, adapt them by avoiding showing nudity, services, etc., or even moving their businesses out of Spain and taking refuge in countries where sex work is legal and advertising is regulated, as is our case.
What does all this mean? Well, in Spain you will be able to continue advertising on many websites, both local and national, although this does not imply that there will be some restrictions or, what is much more important, some changes of criteria when it comes to being able to advertise since in the same BOE that we initially mentioned, a modification has been included that includes prison sentences for people who use images of another person to advertise, as you can read below:
Final provision fourth. Modification of Organic Law 10/1995, of November 23, of the Penal Code.
«5 (new). Whoever, without the consent of its holder, uses the image of a person to make advertisements or open fake profiles on social networks, contact pages or any means of public dissemination, causing them a situation of harassment, harassment or humiliation, shall be punished with a prison sentence of three months to one year or a fine of six to twelve months.»
And with respect to this novelty in the law we find two points, one of which is quite positive, since said modification of the law, as you have seen, continues to talk about "contact pages", which is what we who dedicate ourselves to this type of advertising really have.
The other, however, forces us to protect ourselves and will surely cause the publication of photos in any type of advertisement to be linked to a document in which the advertiser assumes responsibility for the photos sent, the texts, the phone number and all the necessary information to be able to make the advertisement. I suppose that most of my colleagues will start implementing this immediately, either by signing some type of contract or by sending said authorization by means of a video, as we have been doing for almost two years.
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