Article 282 Spanish Criminal Code: False advertising

Article 282 punishes manufacturers and traders who, in their offers or in the advertising of products or services, make false claims or state untrue characteristics in such a way as to be capable of causing serious and manifest harm to consumers.

Wording of Article 282 of the Spanish Criminal Code

Elements of the offence

1. The status of manufacturer or trader, which restricts the range of possible perpetrators.
2. False claims or the statement of untrue characteristics in an offer or in advertising.
3. The capacity to cause serious and manifest harm to consumers, which is a requirement of danger and not of result.
4. Intent covering the falsity of the claims, which excludes error and mere commercial exaggeration.

Defence strategy

Commercial exaggeration. Advertising language admits a degree of emphasis which the consumer perceives as such. Generic superlatives and subjective claims are not false statements of characteristics, and the case law confines the offence to verifiable data.

Capacity to cause serious harm. The provision requires a capacity to cause serious and manifest harm. Where the price is low, the product is easily verifiable or the market is a professional one, that capacity is not established and the matter belongs to the administrative sphere.

Attribution within the undertaking. Advertising is habitually produced by several persons and by external agencies. Identifying who approved the specific content, and upon what technical information, is what prevents an attribution based solely upon the formal position held.

Administrative sanction and ne bis in idem. The same conduct is frequently the subject of a consumer protection sanction. Where the administrative penalty has already been imposed upon the same person for the same facts and with the same legal basis, the principle of ne bis in idem must be raised.

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This entry is provided for information only and does not constitute legal advice. The application of any provision depends on the circumstances of the individual case and requires examination of the case file by a qualified lawyer.