Oikeuskäytäntö

  • Tapaustiedot
    • Kansallinen tunniste: 2013/455
    • Jäsenvaltio: Suomi
    • Lyhytnimi:MAO:605/14
    • Päätöksen tyyppi: Tuomioistuimen päätös, 1. oikeusaste
    • Päätöksen päivämäärä: 29/08/2014
    • Tuomioistuin: Markkinaoikeus
    • Aihe:
    • Kantaja: Consumer Ombudsman
    • Vastaaja: DNA Oy (Ltd)
    • Avainsanat: advertisement, distance contracting, information requirements, misleading price
  • Direktiivin artiklat
    Consumer Rights Directive, Chapter 3, Article 8, 1.
  • Ylähuomautus
    The marketing of consumer goods must provide the consumer with essential information about the terms of contract so that the consumer can reach a reasoned decision concerning the purchase of goods. Marketing must not be misleading. More specifically, if the duration of the consumer contract is more than one month, the total price of the whole contract as well as its duration must be provided to the consumer in a clear and understandable way. Providing only a monthly price is insufficient.
  • Taustatiedot
    The defendant had advertised a television package for a reduced price in a 25 second television commercial. The package contract was for six months. The monthly price was shown in the commercial in normal sized lettering but the actual total price was shown only briefly and in small lettering which made it impossible for the consumer to read.

    The plaintiff demanded that the Market Court prohibits the defendant from offering a service by using television as means of distant communication in the future without informing in a clear and understandable way, which is suitable for the used distance communication medium, about the: 1) price and terms of payment of the service; 2) the conditions concerning the delivery and fulfilment of the contract; 3) the minimum term of the contract; as well as 4) the offer’s period of validity. The plaintiff demanded that the Market Court imposes a penalty payment of EUR 200 000 on the defedant to reinforce the prohibition.

    The defendant demanded the Market Court to dismiss the plaintiff’s claim. In addition the defendant demanded that if a prohibition is ordered, it should be limited to cover only the marketing of subscription channel services and further that the penalty payment should only amount to EUR 100 000 at most. The defendant demanded an adaptation period of three months from a non-appealable decision to be able to comply with the prohibition.
  • Oikeudellinen kysymys
    What information must be presented in an offer marketed on a television commercial? How must information be presented so that its conveyance is considered clear and understandable?
  • Ratkaisu

    The plaintiff claimed that television marketing regarding the subscription channel package was not done in accordance with chapter 6 of the Consumer Protection Act concerning distance sales. The Market Court considered that the defendant's conduct in providing information which was only based on the television commercial cannot be assessed under regulations regarding distance sales. This is because the sales contract is not concluded in connection with the commercial but by using other means of distance communication. Instead, the defendant's conduct must be assessed using chapter 2 of the Consumer Protection Act concerning the general provisions related to marketing. According to chapter 2 section 1 of the Consumer Protection Act, marketing shall not be unethical and shall not use practices that are unfair for consumers. Unfair practices are defined in more detail in chapter 2 section 3 subsection 1 of the Consumer Protection Act. According to chapter 2 section 7 subsection 1 of the Consumer Protection Act, essential information, which the consumer needs in order to make a purchase decision or some other decision related to consumer goods, shall be provided to the customer via marketing or customer relationships. According to the Market Court’s opinion, the above stated information had not been legible to the consumer from the commercial.

    According to chapter 2 section 8 of the Consumer Protection Act, when offering individualized consumer goods at a certain price, the total price of the consumer goods inclusive of taxes must be presented. According to section 8 of the same chapter, if consumer goods are offered at a joint price or in a way that by buying the goods, the consumer receives other goods at a reduced price or some other special benefit, the contents of the offer and its value as well as separate prices for each of the goods and especially the duration of the offer and also quantitative and other restrictions must be clearly notified in marketing.

    According to the Market Court’s opinion, the television commercial did not fulfill the prerequisites set out in chapter 2 section 8 and 12. Lack of said information has lead the consumer to make a decision that he or she might not have made had the consumer been presented with sufficient information. Thus, the conduct had also been unfair according to chapter 2 section 7 and section 3 subsection 2.

    URL: http://www.markkinaoikeus.fi/fi/index/paatokset/markkinaoikeudellisetasiat/markkinaoikeudellisetasiat/1410247479214.html

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  • Hakutulos
    In its decision the Market Court prohibits the defendant from offering individualized services at a certain price without clearly informing the total price of the service, and, if the service in question is fixed-term, to also inform the consumers about the minimum duration of the contract. The Market Court also prohibits the defendant from making an offer without clearly informing the duration of the offer. The prohibition must immediately, without an adoption period, be complied with under penalty of EUR 100 000 fine. The decision is final.