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Case detail

B a c k

Directive article Article 5 1.
Article 6 1. (b)
National ID 2J/2013
Country Portugal Decision date 01/03/2013
Common name 2J/2013 Decision type Other
Court Segunda Secção do Júri de Ética Publicitária do ICAP (Lisboa) Plaintiff(s) VODAFONE PORTUGAL – COMUNICAÇÕES PESSOAIS, S.A.
Court translation Second Section of ICAP’s (Advertising Self-Regulatory Organization for Advertising) Jury (Jury for Ethics) in Advertising (Lisbon) Defendant(s) OPTIMUS – COMUNICAÇÕES, S.A.
Subject misleading statements
Keywords average consumercomparative advertisingmisleading advertisingmobile phone services

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Headnote

Making statements about the efficacy of a specific service from a certain service provider, which are not determined in an objective way, constitutes a misleading commercial practice.

Facts

Legal issue

The defendant launched a campaign both in outdoors and press in which it claimed that 4G for iPhone 5 would only be possible through the services provided by defendant. It also stated that it was the only national operator to able to provide to iPhone 5 and to iPad users a real “4G” experience.

The plaintiff claimed that it is not possible, based on the evidence provided by the defendant, to confirm the claims included in the advertising.

Moreover, it could also be construed that the campaign indirectly stated that defendant provided better services than its competitors which is a form of comparative advertising, which is, in general terms, prohibited under Article 16 of Decree Law 330/90, of 23 October 1990 (the “Advertising Act”). Making such claim without any grounds constitutes both a violation of the truthfulness principle and a misleading advertising, under Articles 10 and 11 from the Advertising Code, respectively.

Furthermore, defendant claimed that they are the “only Portuguese operator” to provide a 4G experience to its users, which can be construed as unfair competition, for the purposes of Decree-Law 57/2008, of 26 March 2008. Finally, plaintiff argued that defendant’s actions were in breach of ICAP’s code of conduct.
 

Decision

Does making statements on the efficacy of a service from a service provider, which are not objectively measured, constitute a misleading commercial practice?

  URL Decision Decision full text
EN N/A
PT http://www.icap.pt/icapv2/icap_site/deliberacao_detalhe.php?AG4JPQ51=ADotela9Xr1&AHAJJg5i=&AGoJNwtela9Xr1tela9Xr1=ADcJZw4z&AGIJPQ5v=ADEJYw4xVmktela9Xr1

Result

It was held that the defendant did not present any convincing evidence that could support its claims on the quality of the service thus making it impossible to lawfully use comparative advertising;

The use of comparative advertising, so the court held, is only acceptable in the cases expressly stated in the law, namely when it is not misleading. As this was not the case, the advertisement could ultimately deceive an average consumer. Therefore, it was considered a misleading commercial practice.
 

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