Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b)

Making statements about the quality of a service that is not objectively measurable, constitutes a misleading commercial practice.

The defendant launched a television, press, outdoor and internet campaign. In the television ads, the advertising campaign stated “When one first looks at mobile broadband it seems to be equal, to have the same speed and the same prices” after which it said “In fact, they are not” followed by “The broadband of the defendant continues to lead everywhere”.

The outdoors, internet and press ads claimed that “it was the biggest national coverage for 4G communications”. Furthermore, a flyer contained the expression “best telecommunications quality of service”.

The plaintiff claimed that the statements were, amongst other, false as they aimed to mislead consumers. Further, the plaintiff argued that the defendant’s claims constituted a form of comparative advertising, in terms that were not admissible under Portuguese law.

Accordingly, the plaintiff considered that the defendant’s conduct was in breach of Article 10 (truthfulness principle), Article 11 (misleading advertising), Article 12 (respect for consumers’ rights) and Article 16 (comparative advertising) of Decree-Law 330/90, of 23 October 1990 (the “Advertising Act”). Further, it also claimed that the defendant’s actions should be deemed as an unfair commercial practice as per Article 7 (1) (b) of Decree-Law 57/2008, of 26 October 2008. Finally, it was argued that the defendant’s actions were in breach of ICAP’s code of conduct.  

The court first held that the defendant did not present any clear evidence that could support its claims about the quality of the service. As a result, so the court held, it was impossible for the defendant to lawfully use comparative advertising as it did. The court reminds that the use of comparative advertising is only acceptable under the conditions expressly stated in law, among others when the comparison is not misleading. As this was not the case, the advertisement was held to be capable to deceive an average consumer.

The court further established that the defendant did not have a 4G coverage everywhere as it had claimed. Consequently, it was held that this claim had disrespected the truthfulness principle which all advertising campaigns must respect.  

Does making statements about the quality of a specific service that is not objectively assessable, constitute a misleading commercial practice?

URL: http://www.icap.pt/icapv2/icap_site/deliberacao_detalhe.php?AG4JPQ51=ADotela9Xr1&AHAJJg5i=&AGoJNwtela9Xr1tela9Xr1=ADcJYA41&AGIJPQ5v=ADEJYw4xVmgtela9Xr1

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The court ruled in favour of the plaintiff and the defendant was ordered to cease its advertisement campaign.