Brazil: New Regulation Issued In Brazil On Audiovisual Advertisements Broadcasted On The Internet

The National Cinema Agency is the regulatory authority with jurisdiction enshrined in law in relation to the Brazilian audiovisual market. In this sense, ANCINE's Normative Instruction 95/2011 specifically regulates broadcasting of audiovisual advertisements in Brazil.

In the event audiovisual advertisements are broadcast in Brazil through pay TV channels, open TV channels, theaters or public transportation, or included in videos commercialized in Brazil - such as DVDs and videos distributed in Brazil by means of the video on demand technology – many requirements of Normative Instruction 95/2011 apply, such as:

  • registration with ANCINE prior to broadcasting of audiovisual ads that are directed to Brazilian consumers;
  • specific tax payments (CONDECINE) must be paid for the different types of broadcasting of audiovisual ads: Pay TV, open TV, theaters, public transportation, vod, DVDs and closed circuits as follows:

    In case of foreign audiovisual ads, meaning the ones produced by foreign companies or Brazilian companies controlled by foreign companies, CONDECINE adds up approximately to:

    1. US$ 60,775.00 for all audiovisual market segments
    2. US$ 50,650.00 for open TV broadcasting
    3. US$ 7,235.00 for pay TV broadcasting
    4. US$ 4,350.00 for home video
    5. US$ 4,350.00 for movie theaters
    6. US$ 750.00 for public transportation and vod
    In case of Brazilian publicity audiovisual works, amounts are considerably lower and CONDECINE adds up approximately to:

    1. US$ 1,085.00 for all audiovisual market segments
    2. US$ 750.00 for open TV broadcasting
    3. US$ 360.00 for pay TV broadcasting
    4. US$ 215.00 for home video
    5. US$ 215.00 for movie theaters
    6. US$ 150.00 for public transportation and vod
  • foreign audiovisual ads in any way aiming the Brazilian consumer may only be broadcasted in Brazil in any market segment if properly adapted to the Portuguese language spoken and written in Brazil. Therefore, ANCINE's understanding is that such ads need to be either dubbed or subtitled to the Portuguese language;
  • the registration of each ad is done only once, regardless of how many times it is broadcasted. Payment of CONDECINE is, however, due every year of broadcasting;
  • registration with ANCINE can only be obtained by entities previously registered with ANCINE;
  • the adaptation to the Portuguese language services must be provided by a previously registered with ANCINE Brazilian producing company under the supervision of a Brazilian advertising film director or foreigner residing in Brazil for more than 3 (three) years and at least 2/3 (two thirds) of the crew must be formed by Brazilians or foreigners residing in Brazil for more than 5 (five) years;

Until 2017, requirements above mentioned did not apply to audiovisual advertisements broadcasted on the Internet or distributed by means of social media platforms.

Normative Instruction 134/2017 was issued on May 9, 2017, modified sections of Normative Instruction 95/2011 and added the need of registration of audiovisual ads broadcasted on the Internet, as well as payment of the CONDECINE tax for this purpose. According to Normative Instruction 134/2017, previous registration requirement would be enforceable by ANCINE as of July 9th, 2017.

Notwithstanding the foregoing, associations representing local advertising agencies and other players filed petitions with Ancine regarding difficulties in the compliance with new regulation as stated by Normative Instruction 134/2017. ANCINE decided to suspend the requirements related to audiovisual ads broadcasted on Internet for the analysis of such claims.

On October 2nd, 2017, Normative Instruction 136/2017 was issued by ANCINE to confirm full enforceability of Normative Instruction 134/2017 as of July 1st, 2018, which results in the applicability of the requirements imposed by Normative Instruction 95/2011 in connection with audiovisual ads on the Internet.

The CONDECINE tax due for such broadcasting on the Internet is approximately US$ 750.00 for foreign ads, meaning ads produced by foreign companies or Brazilian companies controlled by foreign companies and US$ 150.00 for Brazilian ads.

It is important to note that Normative Instruction 134/2017 is applicable to audiovisual ads over 24 frames per seconds, therefore GIFs and banners are not within the scope of the new regulation. Merchandising in non-advertising audiovisual material is also outside the scope of the new regulation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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