Barn och reklam i en digital värld – Om barns marknadsrättsliga skydd på internet

Sammanfattning: In Sweden it is permitted to aim Internet commercials at children of all ages. However, when it comes to television, mail and e-mail there are certain bans on child commercials. The difference can be difficult to comprehend since Internet commercials frequently are embedded in non-commercial material and since the children now grow up in a digital world. The question formulation of this essay is if there should be a prohibition on commercials aimed at children on the Internet. The objective is to examine the interests in favor of and against this. During the past decades, the Swedish market law has evolved from self- regulation by the business-sector to legislation influenced by EU law. The EU has through a full harmonization directive limited the member states’ opportunity to decide the strength of their regulation concerning consumers’ rights. Although Sweden has been able to navigate around this by claiming that the ban on children TV-commercials fall outside of the scope of the directive, the geographical range of the ban has been limited due to the country-of-origin principle of the EU. When it comes to economic activities on-line, the Swedish Market Court has so far considered that the country-of- effect principle applies, despite the fact that e-handelslagen (which implemented the directive on electronic commerce) prescribes the country- of-origin principle. Furthermore, the freedom of expression limits the extent of market law interventions to pure commercial expressions. It has also been established that general prohibitions on commercials possibly require explicit provisions in constitutional law. Nevertheless, there is still a risk that a prohibition would breach the freedom of expression according to the children’s rights convention if it cannot be proven that the commercials harm the child’s well being or that a prohibition would be in accordance with the best interest of the child. However, such a motivation would be possible if the commercial endangers the health of the child, the child’s relationship to its parents, relatives or friends, or their opportunity to grow up into perceptive consumers. The interest of protecting children in combination with the fact that Internet commercials can be difficult to identify, advocates a ban on children commercials on-line. However, a prohibition runs the risk of being ineffective due to conflicts with the freedom of expression, the freedom of information and the freedom of movement within the EU. If a prohibition were to be imposed, it is important that the motivation allows it to avoid profound restriction by the above-mentioned interests.