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Case detail



Directive article Article 7 1.
Article 7 2.
Article 7 3.
National ID President Commercial Court Nivelles, 18 February 2009
Country Belgium Decision date 18/02/2009
Common name President Commercial Court Nivelles, 18 February 2009 Decision type Court decision, first degree
Court Voorzitter Rechtbank van Koophandel Nijvel Plaintiff(s) Base NV
Court translation President Commercial Court Nivelles Defendant(s) Belgacom mobile NV
Subject limitations imposed by the medium
Keywords advertisementcommunication mediumconditional promotionsinformation obligationinformation requirementsinternetmisleading omissions

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Headnote

(1) A reference to a website or to the official points of sale of a trader does not infringe the requirements of professional diligence as far as the consumer is informed, as from the first commercial message, that the offer announced is not complete and that it is necessary to acquire further information.
(2) The use of an advertisement in which the attention is primarily drawn to the benefits of the offer and which falsely creates the impression that the advantage may be obtained without complying with additional conditions which are mentioned in the advertisement in an illegible and disproportionally small way, constitutes a misleading commercial practice.
 

Facts

The defendant, a telecom operator, organized a promotional campaign in which it announced a 50% discount on its telephone services. The promotion was advertised through panels on bus stops, the Internet and on the radio. In each of the advertisements, the defendant indicated that the 50% discount offer was subject to additional conditions, such as the obligation to conclude a two years contract. On the Internet, a link was clearly mentioned in which the additional conditions could be consulted. In the radio commercial, it was stated that the consumer could obtain more information at the points of sale or on the defendant's website. As to the commercial panels on the bus stops, below the main message of the 50% discount, in smaller print the consumer was urged to become a customer of the defendant before a certain date in order to enjoy the offer and on a third level, in very small, nearly illegible letters, the consumer was warned that additional conditions applied.
According to the defendant, the advertisements therefore clearly informed the consumers on the fact that additional conditions applied.
Conversely, according to the plaintiff, the consumer was not clearly informed on the applicable conditions, hence could easily be misled.
 

Legal issue

(1) Does a reference to the trader's points of sale of to the trader's website to consult further conditions on an advertised promotion, constitute a behaviour which is contrary to the requirements of professional diligence?
(2) Does the use of an advertisement in which the attention is primarily drawn to the benefits of the offer and which falsely creates the impression that the advantage may be obtained without complying with additional conditions which are mentioned in the advertisement in an illegible and disproportionally small way, constitute a misleading commercial practice?
 

Decision

(1) The court first regarded the Internet advertisement and the radio commercial. According to the court, the use of a clear link by clicking on which the conditions can be consulted suffices to inform the consumers on the existence of additional conditions. As to the radio commercial, the court took into account the fact that the mention of the sentence "more information available at points of sale and on the website …" was done in the same volume and immediately following the main message. As a result, the court considered that the consumers were clearly informed as well on the application of the conditions.
In a general way, the court stated that a reference to a website or to the official points of sale of the defendant does not infringe the requirements of professional diligence as far as the consumer is informed, as from the first commercial message, that the offer announced is not complete and that it is necessary to acquire further information.
(2) However, as to the advertisements used on bus stops, the court found that the defendant had infringed the prohibition on misleading commercial practices by omitting to clearly provide material information which the consumer needs to take an informed transactional decision. According to the court, there was more than sufficient room on the advertisement panel to also clearly indicate the conditions under which the offer was made. The court held that an advertisement in which the attention is primarily drawn to the benefits of the offer and which falsely creates the impression that the advantage may be obtained without complying with additional conditions which are mentioned in the advertisement in an illegible and disproportionally small way, constitutes a misleading commercial practice.
 

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Result

The court ruled against the defendant as regards the advertising panels at bus stops.

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