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Case detail

B a c k

Directive article Article 6 1. (b)
National ID 6J/2012
Country Portugal Decision date 07/05/2012
Common name 6J/2012 Decision type Other
Court Segunda Secção do Júri de Ética Publicitária do ICAP (Lisboa) Plaintiff(s) PT COMUNICAÇÕES, S.A.
Court translation Second Section of ICAP’s Jury for Advertising Ethics (Lisbon) Defendant(s) OPTIMUS – COMUNICAÇÕES, S.A.
Subject misleading statements
Keywords comparative advertisingmaterial informationmisleading advertisingproduct characteristics

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Headnote

Making statements on the performance of a service from a service provider that does not yet exist and that it is not measurable at that point in time constitutes a misleading commercial practice.

Facts

The defendant launched a television campaign claiming that it was going to make available 4G telecommunication services for everybody (“todos” in Portuguese). It further stated that it would be the best 4G broadband service in Portugal.

The plaintiff argued that it is not possible to assess in advance the quality of the service in order to claim that it was better than the services provided by competitors. The use of this expression was also presented as a form of comparative advertising, which is, as a rule, prohibited under Article 16 of Decree Law 330/90, of 23 October 1990 (the “Advertising Act”).

It was also discussed that stating in advertising the quality of a service prior to the existence of the same, would constitute a misleading advertising, which is prohibited under Article 11 of the Advertising Act.

Furthermore, the use of the expression “everybody” (“todos” in Portuguese) was not defined or disclaimed in any way in the television campaign which would make it impossible to measure if the statement was true or not. It was then argued that this would infringe the truthfulness principle set down in Article 10 of the Advertising Act.

Finally, it was argued that the defendant’s actions were in breach of ICAP’s code of conduct.
 

Legal issue

Are statements on the performance of a specific service that does not yet exist and that it is not evaluable at that point in time a case of misleading commercial practice?

Decision

In its ruling, the court held that an advertisement cannot state the quality of a service that does not yet exist, as this does not respect the principle of truthfulness.

The court further held that the use of comparative advertising is only acceptable under those conditions expressly provided for in law, among others when it is not misleading. As this was not the case, according to the court, the advertisement could ultimately deceive an average consumer.
 

  URL Decision Decision full text
EN N/A
PT http://www.icap.pt/icapv2/icap_site/deliberacao_detalhe.php?AG4JPQ51=ADotela9Xr1&AHAJJg5i=&AGoJNwtela9Xr1tela9Xr1=ADcJYQ43&AGIJPQ5v=ADEJYw4xVmgtela9Xr1

Result

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

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