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Case Details

Case Details
National ID KKO:2013:5
Member State Finland
Common Name KKO:2013:5
Decision type Supreme court decision
Decision date 31/01/2013
Court Supreme Court
Subject
Plaintiff Consumer Ombudsman
Defendant LB Marketing and Holdings Oy
Keywords aggressive commercial practices, unwanted solicitations

Unfair Commercial Practices Directive, Chapter 2, Article 5, 4., (b) Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8

(1) Is fastening of advertisements to consumers’ front doors and letterboxes without permission of such consumers, does not constitute an aggressive practice?

(2) Fastening of advertisements to consumers’ front doors and letterboxes without permission of such consumers, is contrary to good practice under the Finnish Consumer Protection Act?  
The defendant distributed advertising of its customer companies by attaching post-it note styled advertisements onto consumers’ front doors and letterboxes without the consumers’ permission.

The plaintiff considered the defendant’s marketing practice, without the consumers’ permission, to be aggressive because it disturbed consumers’ domestic peace and conflicted with the consumers’ protection of private property. Also, the plaintiff found this conduct to be contrary to good practice, because the note on the door would, for example, act as a sign of an empty apartment to outsiders and thus increase the risk of burglaries.

The plaintiff requested that the Market Court ban the defendant from attaching advertising notes to consumers' front doors and letterboxes without their consent under a penalty of a EUR 50.000 fine.

The Market Court, however, did not find the defendant’s marketing practices to be unlawful and rejected the application by the plaintiff. The Market Court did not find the marketing to be aggressive, because although this marketing method was considered new, that fact alone did not give rise to a requirement for a prior explicit consent for the marketing practice. Also, because the defendant had not distributed the advertisements to places where it was forbidden, had reserved a possibility for the consumers to refuse from the marketing, did not cause any actual nuisance for the consumers or damage to the surface of the note and had a plan to always remove the notes a couple of days later, the Market Court did not find the marketing to be aggressive.

Further, the Market Court concluded that the marketing was not in conflict with good practice because, for example, there are other factors from which it is possible to draw a conclusion that an apartment is empty than a note attached to the door. In conclusion, the Market Court did not find the defendant’s practice to be aggressive or contrary to good practice in the manner referred to in the Consumer Protection Act.

The plaintiff was granted with a leave to appeal to the Supreme Court. The plaintiff requested that the defendant would be prohibited to use marketing where it fastened advertisements to consumers’ front doors and letterboxes without permission under a penalty of a EUR 50.000 fine.  
The court found, when assessing the aggressiveness of the practice, that the used method of distributing advertising was not aggressive but rather a cause of annoyance, worrisome and insecurity for the consumers and that the practice did not influence consumers' transactional decisions. As a result the court decided that the practice was not unfair.

However, the court found that the practice conflicted with the fundamental rights guaranteed by the Constitution of Finland, including respect and integrity of domestic peace, privacy and property. For this reason, the practices employed by the defendant were deemed to be conflicting with generally accepted social values and therefore contrary to good practice in the manner referred to in the Consumer Protection Act.
(1) Does fastening of advertisements to consumers’ front doors and letterboxes without permission of such consumers, constitute an aggressive practice?

(2) Is fastening of advertisements to consumers’ front doors and letterboxes without permission of such consumers, contrary to good practice under the Finnish Consumer Protection Act?  
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The court overturned the decision by the Market Court and banned the defendant from using the direct marketing method in which advertising notes are attached to the front doors and letterboxes of consumer households without permission from the individuals in question. To enforce the ban, a notice of a conditional fine of EUR 50,000 was issued.