Date of last update: 24 June 2021. Updated on: 19.01.2022 by the Presidium of KER at the request of KER arbiters and as a result of recommendations submitted by the Office
COMPLAINTS HANDLING RULES
I. General provisions
- The Advertising Ethics Committee (Komisja Etyki Reklamy, hereinafter: “KER”) is a body of the Union of Associations Advertising Council (Związek Stowarzyszeń Rada Reklamy, hereinafter: “Advertising Council”).
- The Advertising Council is a self-regulatory body of the advertising market. Within the framework of its statutory objectives, it works to achieve the highest ethical standards in the marketing communication market, set forth in the Code of Ethics in Advertising (hereinafter: „Code”). Compliance with the Code of Ethics in Advertising by advertisers is supervised by KER.
- Proceedings before KER may be carried out independently of any proceedings before general courts of law, courts of conciliation, arbitration courts, public administration authorities or any other entities.
- KER is composed of arbiters appointed in accordance with the rules specified in the Advertising Council Statute.
- KER arbiters are appointed from among the candidates who represent separate groups of actors of the advertising market, as defined in §5 section 1 of the Advertising Council Statute.
- KER arbiters appoint, from among themselves, the Presidium according to the rules resulting from §18 section 4 of the Advertising Council Statute.
- Duties of the Presidium. The Presidium shall meet as and when necessary, but not less frequently than once a month. The Presidium’s duties shall include, inter alia, the following:
a) to review resolutions adopted by KER and to repeal them if reasons therefor, as specified in clause 65 of the Rules, are found,
b) to consider appeals against calls for correction of formal shortcomings, against decisions to dismiss complaints without consideration, and decisions to reject complaints due to their lack of relevance to the subject of the Code,
c) to consider requests for exclusion of any member of the Adjudication Panel,
d) to make decisions to consider complaints jointly if they concern the same charge or interrelated charges, or to grant power of attorney in this regard to the Office of the Advertising Council,
e) to decide to extend the period laid down in clause 26 if an appeal cannot be considered within this time limit,
f) to decide to extend the period laid down in clause 24 if an appeal cannot be considered by the Speaker-Arbiter within this time limit due to the number of incoming complaints.
- KER Chairperson The Presidium elects, from among its members, the KER Chairperson in accordance with §18 section 5 of the Advertising Council Statute. If the KER Chairperson is unable to perform his/her tasks specified in these Rules (for objective reasons), he/she shall grant a power of attorney to one of the members of the Presidium, with the proviso that such a person will represent a different group of advertising market participants than the KER Chairperson. The power of attorney granted by the KER Chairperson expires at the moment when the KER Chairperson is able to take the actions provided for him/her in these Rules, with the proviso that the actions performed by the attorney remain in force. Should it be impossible (due to objective reasons) to grant the power of attorney referred to above, the person substituting for the KER Chairperson is indicated by the Presidium by way of a resolution.
- Duties of the KER Chairperson. The KER Chairperson directs the works of the Presidium and undertakes other actions provided for in these Rules.
- The Presidium may adopt resolutions by voting at sessions or through electronic mail, subject to the provisions of §3 sections 2 and 3 of the Rules of the Advertising Ethics Committee.
II. Submission of complaints
- The Office of the Advertising Council. Complaints are submitted to the Office of the Advertising Council. The Office of the Advertising Council:
a) accepts complaints;
b) provides office services to KER;
c) establishes the composition of the panel authorized to consider complaints, as mentioned in these Rules (hereinafter: “Adjudication Panel”);
d) sets the dates of sessions of the Adjudication Panel;
e) orders a written opinion to be prepared or invites experts mentioned under clause 32 to sessions of the Adjudication Panel;
f) undertakes other actions provided for in these Rules.
- Entitled entities. Complaints may be lodged by natural persons, legal persons and organizational units without legal personality. Complaints may be submitted jointly or separately by complainants.
- The Board of Advertising Council may lodge complaints under the rules specified for entities referred to in clause 17. A complaint must be preceded with a resolution on the matter, adopted by the Board.
- Consumer complaints. Consumer complaints can be filed through the form available on the website of the Advertising Council at https://radareklamy.pl/formularz-skargi/ under the tab ONLINE COMPLAINT FORM FOR CONSUMERS. Before filing a complaint, please review the complaint instructions available at the address indicated in this clause.
- In the event that it is not possible to file a complaint in the manner indicated in clause 15, a consumer may also file a complaint by completing the form, available for download at https://radareklamy.pl/formularz-skargi/ under the tab “Download Complaint Form for Consumers (docx)”, which is Appendix No. 1 to these Rules, and attaching it as a scan to an e-mail sent to the email address of the Advertising Council, or by sending it by post to the address of the Advertising Council.
- Entrepreneur complaints. Complaints lodged by entrepreneurs in connection with their business shall be submitted by completing the form, available for download at https://radareklamy.pl/formularz-skargi/ under the tab “Download Complaint Form for Entrepreneurs (docx)”, which is Appendix No. 2 to these Rules and attaching it as a scan to an e-mail sent to the e-mail address of the Advertising Council, or by sending it by post to the address of the Advertising Council.
- The use of forms by the complainant significantly speeds up the proceedings, but complaints submitted without the use of a form are also accepted provided that they meet all the formal requirements set out in clause 21 of these Rules.
- Electronic mail. Wherever possible, correspondence relating to the complaint shall be conducted by electronic means in order to considerably accelerate and reduce the costs of proceedings. Therefore, the complainant should always specify an e-mail address for correspondence and give consent to direct correspondence relating to the complaint to that address.
- The complainant is required to notify the Office of the Advertising Council of any change in his or her e-mail address and mailing address.
- Formal requirements of complaints. Each complaint should include:
a) particulars of the complainant: name, surname or business name (in case of complaints filed by entrepreneurs), address for correspondence or the address of the company’s registered office (in the case of complaints filed by entrepreneurs), e-mail address, phone number, NIP or KRS number (in case of complaints filed by entrepreneurs);
b) a proper designation of the advertisement referred to in the complaint, in particular indication of the advertised product/service/brand/producer, type, media in which it was displayed/broadcast, date and hour of broadcast or location;
c) relevant documentation of the advertisement referred to in the complaint and the broadcasting/display environment enabling the determination of the entire content of the advertising message, in particular, photographs, recordings or screen shots and a precise description of the content;
d) grounds, in particular indication of what the complainant finds to be inconsistent with the Code of Ethics in Advertising or generally accepted standards;
e) handwritten signature, a scan of the signature or a qualified electronic signature of the complainant or a person authorized to represent the complainant (in the case of complaints submitted by post or as a scan attached to an e-mail message) or a qualified electronic signature (in the case of complaints submitted by e-mail).
- The costs of receiving and considering the complaint shall not be borne by the complainant.
- KER shall not consider any complaints if the charges therein have already been considered in relation to the advertisement complained about and a final resolution has been made. In this case, the complaint shall be dismissed without consideration and the complainant shall be notified accordingly and informed about the reasons for the decision.
III. Preparation of proceedings before the KER
- Preliminary verification of the complaint. Upon receipt of a complaint by the Office of the Advertising Council, a member of KER appointed pursuant to §17(4) of the Advertising Council Statute (hereinafter: “Speaker-Arbiter”) shall verify the formal compliance of the complaint with the requirements set forth in clause 21 of these Rules and shall make a decision to:
a) refer the complaint to the Adjudication Panel for consideration;
b) dismiss the complaint without consideration if it has already been considered by KER and a final resolution has been made, pursuant to clause 23 of these Rules;
c) reject the complaint if the complaint is not subject to consideration by KER in accordance with the Advertising Council Statute or the Code of Ethics in Advertising, i.e. inter alia (i) the complaint concerns social advertising, (ii) the complaint concerns a political campaign or (iii) the complaint concerns internal practices within a company or organization, or if the complaint is manifestly unfounded;
d) request the complainant to correct formal shortcomings of the complaint and set a deadline for doing so,
within ten business days from the receipt of the complaint by the Office of the Advertising Council, and shall notify the complainant of the decision.
- Appeal against the decision of the Speaker-Arbiter. The decisions of the Speaker-Arbiter referred to in clauses 24(b), 24(c) and 24(d) of these Rules may be appealed to the KER Presidium, of which the complainant shall be informed in the notification of the content of such decision. The complainant shall have 10 days from the date of receipt of the decision to lodge an appeal.
- The appeal referred to in clause 25 of these Rules shall be examined by the KER Presidium within 10 business days of the date of its receipt. After considering the appeal, the KER Presidium shall uphold the decision of the Speaker-Arbiter or overrule it and refer the case for consideration by the Adjudication Panel.
- If the complainant fails to correct formal shortcomings of the complaint within the time limit specified by the Speaker-Arbiter in accordance with clause 24(d) above, the complaint shall be dismissed without consideration and the complainant shall be informed thereof.
- Exclusion of a member of the Adjudication Panel. The Speaker-Arbiter and the members of the Adjudication Panel shall not be linked to any party by affinity, kinship or legal bond under a regular employment contract, a fixed-term employment contract, a specific-task contract or other contract to similar effect. If such a connection occurs in the case of the KER Chairperson, the Chairperson’s prerogatives to appoint the Adjudication Panel and arrange its session shall be taken over by one of the Vice-Chairpersons. If such a connection occurs in the case of the Speaker-Arbiter, his/her tasks under these Rules shall be performed by a member of the Board of Advertising Council or a staff member from the Office of the Advertising Council, or a KER member designated by the KER Chairperson.
- When appointing KER members to consider a specific complaint, other circumstances that may raise doubts about the impartiality of the KER members shall also be taken into account. The parties concerned may also request the exclusion of a specific Adjudication Panel member within a period of five days after the notification referred to in clause 39 from the Office of the Advertising Council is received. If the Speaker-Arbiter is unable to perform his/her tasks under these Rules, his/her function shall be taken over by a KER member indicated by the Board of Advertising Council, with account for clause 28. The Speaker-Arbiter may not be a member of the Adjudication Panels or of Appeal Panels.
- In the case of complaints filed by the Board of Advertising Council pursuant to clause 14, and of complaints filed by entities specified under clause 15, the complaints are presented to the Adjudication Panel and supported by the Speaker-Arbiter.
- The Office of the Advertising Council may, until the date of sending the complaint to the complainee, gather evidence on the allegations contained in the complaint, in the matters referred to in clause 14. The Advertising Council Office shall consult with the Speaker-Arbiter on the matters referred to in this section.
- Experts. The Office of the Advertising Council liaises with experts and their affiliated institutions, who are appointed to the Adjudication Panel when specialist knowledge is required to review a complaint, are asked to prepare a written opinion or are invited to participate in the sessions of Adjudication Panels.
- The Office of the Advertising Council prepares documentation related to the complaint for the deliberations of KER.
- Acceptance of a complaint for consideration. If the Speaker-Arbiter makes a decision to refer the complaint to the Adjudication Panel for consideration, the complainant and the complainee shall be notified accordingly. A copy of the complaint (after removing the data of the natural person who has submitted the complaint) is sent to the complainee, requesting that he/she take a position on the complaint within ten business days starting from the date when the notification from the Office of the Advertising Council under pain of further consideration of the complaint in accordance with clause 35. The Office of the Advertising Council shall send the response to the Speaker-Arbiter and in case of complaints referred to in clause 17 – also to the complainant. No materials sent in after that date shall be taken into account by the Adjudication Panel.
- Proceedings without the participation of the complainee. The absence of complainee’s response within the deadline specified under clause 34, as well as the complainee’s refusal to participate in proceedings shall not stop the complaint consideration procedure. At the same time, the complainee in such a situation shall not be entitled to participate in the session or to file an appeal under clause 59 of these Rules, and the resolution of such a case shall be in the form of an opinion, evaluating the advertising message complained of on the basis of generally accepted ethical standards.
- Applications to admit evidence. The parties’ letters may include applications to admit evidence. During the session, only evidence mentioned in the complaint and in the response to the complaint may be considered.
- Composition of the Adjudication Panel. The Office of the Advertising Council shall appoint the Adjudication Panel within 14 business days of the ineffective expiry of the deadline for the complainee to send his/her reply or within 14 business days from the date of receiving the response to the complaint. If an appointed member of the Adjudication Panel is not able to attend a session, he/she shall notify the KER Chairperson and the KER Chairperson shall appoint another KER member to take his/her place. The Adjudication Panel shall be composed of KER members selected according to § 17 sections 1 and 3 of the Advertising Council Statute and each representing a different category of advertising market actors. These rules apply accordingly if a request referred to in clause 7 letter c is accepted.
- Session date. The Office of the Advertising Council shall appoint the Adjudication Panel within a period not exceeding 14 business days from the date of setting the date of the session. The Office of the Advertising Council shall notify the parties according to the rules described in clause 27, within two business days from the issue of the decision on the date of the session and the composition of the Adjudication Panel.
- Notices. If the complaint is lodged by entities referred to in clause 17, the parties shall be notified of the date of the session and the composition of the Adjudication Panel. Otherwise, the parties shall be notified of the referral of the complaint to the session of the Adjudication Panel, together with an indication of the date of the session and the composition of the Adjudication Panel, while the complainant shall be notified of the appointment of the Speaker-Arbiter or any other person designated according to clauses 28, 29 or 30 to present and support the complaint at the session.
- Requests for the invitation of experts. The Office of the Advertising Council on its own initiative or at the request of the Speaker-Arbiter or Adjudication Panel, in the event that specialized knowledge is required for the consideration of the complaint, may invite the experts referred to in clause 32 to the session or ask them to prepare a written opinion. The Office of the Advertising Council provides experts with the necessary documentation related to the complaint. Experts shall give a written opinion, to be included on file, or an oral presentation of their opinion, with concluding remarks to be included in the minutes of the session. In the event of the presence of experts during the session of the Adjudication Panel, its members and the parties, the parties’ attorneys or persons representing them may ask the experts questions.
- Withdrawal of complaint. The complainant may withdraw the complaint no later than ten days prior to the beginning of the session of the Adjudication Panel.
- Retention. The Office of the Advertising Council does not return materials submitted in connection with the complaint. The parties may collect them within six months from lodging of the complaint. After this deadline, the Office of the Advertising Council may destroy the materials or store them until the end of the statute of limitations for claims related to the complaint (generally 6 years for consumer complaints and 3 years for entrepreneur complaints).
IV. Proceedings before the Adjudication Panel
- Parties. The parties to proceedings before the Adjudication Panel are the complainant and the complainee.
- Procedure for Sessions. Sessions of the Adjudication Panel are held in the following manner:
a) on site – with members of the Adjudication Panel physically present,
b) remotely – through technical means of audio and visual transmission (in the form of a videoconference),
c) hybrid – with some members of the Adjudication Panel physically present and other participating remotely.
- Chairperson of the Adjudication Panel. The Adjudication Panel members shall select from among themselves the Chairperson who shall direct the Adjudication Panel’s work. The Office of the Advertising Council shall be notified of the identity of the Adjudication Panel Chairperson on the day before the session. Otherwise the KER Chairperson shall appoint the Adjudication Panel Chairperson.
- Speaker-Arbiter. The session is attended by the Speaker-Arbiter who, in addition to the powers described in clause 30, monitors whether the proceedings run according these Rules, and – if required – reports the details of the case to the members of the Adjudication Panel. For the same reasons the Speaker-Arbiter can also listen to the deliberations if such a decision is made by Adjudication Panel members.
- Minute-taking. Sessions of the Adjudication Panel are minuted. The person taking the minutes shall be the Speaker-Arbiter or, if needed, a person appointed by the Adjudication Panel Chairperson from among the employees of the Office of the Advertising Council. The minutes are signed by all members of the Adjudication Panel and by the person appointed to take the minutes of the session. If the session is held remotely or in a hybrid form, signatures are to be collected within 3 business days from the session.
- Arguments of the parties. During the session of the Adjudication Panel, the parties have the right to deliver 15-minute speeches and then 7-minute replies in the following order: first the complainant and then the complainee. The Adjudication Panel may consider the complaint and adopt a resolution even if a party or parties are absent or do not take part in the meeting despite being present.
- Resolution. The Adjudication Panel, in cases other than those described in clause 35 of these Rules, shall adopt a resolution in which, depending on the circumstances found, it shall:
a) reject the complaint if, according to the Advertising Council Statute or the Code, the complaint is not within the competence of KER,
b) dismiss the complaint on the grounds that the Code has not been violated or there is a lack of evidence,
c) uphold the complaint and find that the advertisement breaches the Code standards,
d) uphold the complaint and inform the complainee that the advertisement should be amended so as to rectify the breach of Code standards as soon as possible,
e) uphold the complaint and communicate to the complainant the position that the complainant should cease to advertise.
Decisions and opinions referred to under letters c, d and e above may be included in one and the same resolution.
- The Adjudication Panel shall, by presenting the opinion referred to in clause 49(d) or (e), set a deadline for the complainee (advertiser) to, respectively, modify the advertisement in question or stop the distribution thereof, taking into account the technical and organizational feasibility of the implementation of the resolution.
- In the case referred to in the above clause 50, the Adjudication Panel shall order that the Advertising Council, in addition to delivering a copy of the resolution to the complainee, request the complainee to notify the advertising agency which produced the advertisement and the media which (have) distributed it about its contents. In the notification, the Advertising Council shall request the complainee to appeal to advertisers and other entities which were involved in the production or distribution of the advertisement, for the implementation of the resolution.
- Resolution in written form. The Adjudication Panel shall adopt a resolution on the day of its session. A resolution in writing shall be issued within seven business days of its adoption. A draft resolution shall be drawn up by the Speaker-Arbiter who shall present it to the members of the Adjudication Panel for approval by signing.
- Dissenting opinions. A member of the Adjudication Panel who does not agree with the contents of the resolution and who has been outvoted may present his/her dissenting opinion regarding the resolution of the Adjudication Panel. A dissenting opinion requires a written justification made within 7 business days from the date of the resolution. A dissenting opinion shall be attached to the resolution of the Adjudication Panel.
V. Publication of the Adjudication Panel’s resolutions
- Publication of the resolution. All final and binding resolutions of the Adjudication Panel (with no measure of appeal) shall be published in the (online) information portal of the Advertising Council – within seven business days of the issue of the resolution in writing.
- The Advertising Council is an entity acting on clear and transparent principles and in the public interest, benefiting from the constitutionally guaranteed freedom of communication, whose activities are based on self-regulation. Publishing resolutions is an action that corresponds to the statutory purpose of the Advertising Council regardless of the complainant’s participation in the proceedings.
- The parties, as well as members of the Advertising Council and interested advertising agencies, shall receive a final and binding resolution of the Adjudication Panel without undue delay.
- The Office of the Advertising Council may decide to communicate the contents of the resolution to other entities after the resolution becomes final and binding, including in particular the Municipal Consumer Ombudsman or the President of the Office of Competition and Consumer Protection. In addition, the complainee shall be advised to voluntarily implement the opinion included in the final and binding resolution.
- The Office of the Advertising Council may also decide to publish its resolution in selected industry media.
VI. Appeals against the Adjudication Panel’s resolutions
- Lodging an appeal. The parties may appeal against the resolution of the Adjudication Panel within ten business days of the receipt of the resolution. The appeal may only be based on new facts and evidence, which were not known to the Adjudication Panel on the date of the adoption of the appealed resolution.
- The appeal shall be considered by the KER Appeal Panel composed of KER members who were not members of the Adjudication Panel which considered the complaint.
- The appeal shall be submitted to the KER Presidium via the Office of the Advertising Council. The Office of the Advertising Council shall appoint the Appeal Panel under the rules set forth in clause 37, and notify the Presidium of the appeal lodged.
- The proceedings before the Appeal Panel shall be governed by the provisions of these Rules, with the following exceptions:
a) the right to appeal against a resolution of the Appeal Panel,
b) appointment of an expert if he/she has presented an opinion before the Appeal Panel,
c) the obligation to use the forms attached as Appendices 1 and 2.
- Upon considering the appeal, the Appeal Panel, in their resolution, shall:
a) dismiss the appeal,
b) rule fully or partly in favour of the appeal.
- The Appeal Panel may not refer the case for re-consideration by the Adjudication Panel.
VII. Repeal of a resolution and discontinuance of proceedings
- Repeal of a resolution. The KER Presidium repeals a resolution if:
a) it was adopted with regard to an entity which is not a party in the case;
b) the facts established in the case proved to be inconsistent with reality and such inconsistency influenced the content of the resolution;
c) it concerns a case already previously resolved by a final and binding resolution.
- Discontinuance of proceedings. If any of the prerequisites referred to in section 65 is found to exist prior to the issuance of a resolution, the Adjudication Panel shall discontinue the pending proceedings.
VIII. Final provisions
- Any matters which are not provided for in these Rules shall be governed by the KER Rules, the Code of Ethics in Advertising and the Advertising Council Statute.
- Whenever these Rules refer to a business day, it should be understood to mean any day that is not a Saturday, Sunday or a public holiday within the meaning of the Act of 18 January 1951 on days off from work (as amended).
- The Appendices to these Rules form their integral part.