“Afbrekende reclame en slechtmaking (noot onder Antwerpen 11 maart 2020)”
In a judgement of 11 March 2020, the Court of Appeal in Antwerp examined whether a letter sent by a public telecom operator to its lessors of antennae warning them about the dangers of leasing to private companies constituted denigrating or discrediting advertising (Articles VI.104 and VI.105 Code of Economic Law). The Court held that the letter did not constitute ‘advertising’ within the meaning of Article 2(a) Directive 2006/114/EC, nor was it deemed discrediting. The author addresses this issue in her contribution and further explains that in the case at hand, the requirement ‘to promote the supply of goods or services’ in the definition of ‘advertising’ was not met since the public telecom operator had sent the letter to its own lessors and not to potential clients. She further points out that the use of ‘neutral and objective explanations’ in the letter exempted the telecom operator of denigrating and thus unfair practices. She concludes that in cases of denigration or commercial defamation, judges apparently have a wide margin of discretion.