Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4., (c) Unfair Commercial Practices Directive, Annex I, 19.

The overall presentation of a television program as an entertainment show in which consumers can win prizes, whereas in reality this programme is primarily intended for advertising purposes and consumers have no chance of winning such prizes, constitutes a misleading commercial practice. 

The present case concerns a television broadcasted by the defendants. On 8 September 2010 the Italian Competition Authority decided to start an investigation regarding the television contents producer Publimar S.r.l. and the television supplier Canale Italia S.r.l. Proceedings were launched following a report by the Italian Ministry of Economic Development and a complaint of a trader.

The defendants presented a television game, "Quiz Time", during which consumers could participate by calling an overpriced telephone number.

By encouraging consumers to participate in the game, the defendants advertised multimedia content and took advantage of the overpriced calls. The television program did not indicate clearly its promotional nature. Consumers were attracted by the possibility to easily win advertised prizes by participating in the game. In reality however, consumers did not have a real chance to participate in the quiz, let alone win any prize.



Defendant Canale claimed that it entered into a contract with defendant Publimar concerning the sale of a television space for a game/telesales. According to Canale, it never took part in the design and arrangement of the program's content. Defendant Canale also held, that it inserted the indication "teleshopping" into the program for the whole duration of broadcasting. Therefore, the defendant claimed that clear and complete information was given about the nature of the program and the costs of the call during the entire broadcasting. Defendant Canale concluded that it had no contacts with the telephone companies offering the premium phone numbers and it did not participate in the collection of relevant revenues.

Does the overall presentation of a television program as an entertainment show in which consumers can win prizes, whereas in reality this programme is primarily intended for advertising purposes and consumers have no chance of winning such prizes, constitute a misleading commercial practice?

The Italian Competition Authority stated that the defendants omitted to provide material information which the average consumer needs in order to take an informed transactional decision.

According to the Authority, the defendants deceived consumers to think that "Quiz Time" was a television game and not a program primarily focused on advertising activities. 

This false belief was primarily caused by the fact that defendant Canale included the quiz in its program schedule. In this regard, it was cleared out that the program concerned was qualified as "entertainment" (a category that included other show programs broadcasted by the defendant Canale), hence it was entirely unclear that the program concerned was different from other similar programs such as "teleshopping", "mess. promotion" and "advertising".

Moreover, the graphic presentation of the quiz show and the presence of a TV presenter in the studio, contributed to creating an impression of a normal television program.

The Authority further pointed out that the banner that unfolded during the broadcast and which described the quiz as an "advertising", was not sufficient to exclude the unfairness of the concerned practice. According to the Authority the dimensions of this banner were too small and the period during which this banner was displayed was too short for an average consumer to recognize the advertising nature of the broadcast.

The Authority concluded that the way in which the program "Quiz Time" was presented, constituted an unfair commercial practice.

 

URL: http://www.agcm.it/ricerca-avanzata/open/C12560D000291394/7789808C3710FD0AC125783F003EC802.html

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The Italian Competition Authority decided to fine both traders and it issued a cease-and-desist order regarding the criticized practices.