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In brief

On 3 June 2021, the Law for Improper Advertising Practices was published in the official journal of the federation (DOF). This law aims to promote transparency in the advertising market, to prevent and combat commercial practices that constitute an undue advantage in favor of specific individuals to the detriment of advertisers and consumers.

Thousands of Companies submitted an “amparo” action alleging that the LIAP transgressed several human rights. Also, the Federal Institute of Telecommunications (IFT) filed a constitutional action seeking a general declaration of unconstitutionality.


This January 2023, the LIAP was declared unconstitutional by the SCJN, considering that it violates the human rights of freedom to work, free contracting, freedom to trade and autonomy of will. However, this ruling is one isolated criterion which is not binding and has no general application yet, as it will only protect those who are parties in the “amparo” action that gave origin to the court ruling (since it is not a general declaration of unconstitutionality). Nonetheless, this is an important precedent that should be used by all the Courts to grant the “amparos”, and also will help to pursue in the future a general declaration of unconstitutionality of the LIAP.

Key takeaways

  • According to the SCJN, “The law contravenes the constitutional regime in force, since commercial relations must be free transactions in which the contracting parties exercise their will with authenticity, without any conduct of any nature being imposed on such free agreements, without being intervened by third parties, including the State”.
  • The law prohibits advertising agencies from contracting spaces in the media to later resell them to advertisers, a common practice in the sector, and orders the Federal Economic Competition Commission (COFECE) to impose fines of up to 4% of the annual income of violators.
  • The SCJN rejected that the resale of advertising can be classified as an illegal activity since it violates the human right of freedom to trade.
  • This resolution is only bound for the plaintiff and defendant in the particular case but not for every person or company.
  • This resolution is an important precedent that should be used by all the Courts to grant the “amparos” submitted by the Companies, and also will help to pursue in the future a general declaration of unconstitutionality of the LIAP, when the constitutional action filed by the IFT is resolved by the SCJN.
Author

Carlos is a partner in Baker McKenzie's Information Technology and Communications Practice Group in Mexico City, and the head of the Firm's Technology, Media and Telecommunications (TMT) Industry Group in Mexico. A Certified Information Privacy Manager (CIPM) by the International Association of Privacy Professionals (IAPP), and an award winner of national accolades on digital transformation and legal innovation, Carlos is recognized by Chambers and Partners, Legal 500 and other international publications as one of the country's leading TMT lawyers. Carlos' strong specialization and multidisciplinary consultancy background (prior to joining Baker McKenzie, he led the TMT legal practice of PwC) and superior legal tech law knowledge, are the foundation of Carlos' unique vision and problem-solving skills, which allows Carlos to assist clients to identify and address corporate, commercial, technical, compliance, tax, regulatory, strategy, expansion and policy issues that arise in different phases of complex technology projects.

Author

Daniel Villanueva Plasencia is a senior associate of the Intellectual Property Practice Group at Baker McKenzie Guadalajara. He has extensive experience in data privacy and information security matters; in regulatory issues related to information technologies and consumer protection; in intellectual and industrial property, especially focused on digital environments, including the use and licensing of trademarks, patents and copyrights. Before joining the Firm, he was a founding partner of a local firm in Guadalajara. During the last five years, Daniel has taught the intellectual property class at the Tecnológico de Monterrey, one of the most prestigious universities in Mexico.

Author

Roberto Cardona has been a member of Baker McKenzie Abogados since 2003, and is a partner of the Tax Practice Group since 2015, and actually is the leader of the Public and Administrative Group in Mexico. He has been designated as Acritas Star Lawyer in 2019, 2020 and 2021.

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