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Case detail

B a c k

Directive article Article 5 2. (b)
Article 6 1. (b)
National ID 13J/2013
Country Portugal Decision date 01/01/2012
Common name 13J/2013 Decision type Other
Court Primeira Secção do Júri de Ética Publicitária do ICAP (Lisboa) Plaintiff(s) VODAFONE PORTUGAL – COMUNICAÇÕES PESSOAIS, S.A.
Court translation First Section of ICAP’s Jury for Ethics in Advertising (Lisbon) Defendant(s) TMN – TELECOMUNICAÇÕES MÓVEIS NACIONAIS, S.A.
Subject misleading statements
Keywords average consumercomparative advertisingfalse informationmisleading advertisingmisrepresentationtelephone

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Headnote

Making statements about the quality of a specific service, where those statements are not objectively measurable, constitutes a misleading commercial practice.

Facts

The defendant launched a television, radio and internet campaign in which it made several claims about the superiority of its 3G and 4G telecommunications services. Namely, the defendant stated that it had “the best 3G and 4G coverage”; the “best national 4G coverage” and that “every district capital and island (in Portugal) already had 4G coverage”. Additionally, it also claimed that it had won several excellency awards.

The plaintiff claimed the statements were not true as there were no verifiable studies from the Portuguese telecommunications regulator (“ANACOM”) which could support the defendant’s claims. Moreover, the claim “All district’s capital and islands (in Portugal) already have 4G coverage” was not correct as there were two islands at the time of rendering the decision that did not have 4G coverage (contrary to what the defendant had stated). Furthermore, the plaintiff also argued that the defendant had not won any excellency awards.

Accordingly, the plaintiff considered that the defendant’s campaign disrespected Article 10 (truthfulness principle), Article 11 (misleading advertising) and Article 16 (comparative advertising) of Decree-Law 330/90, of 23 October 1990 (the “Advertising Act”). Further, it also claimed that the defendant’s actions would amount to an unfair commercial practice as per Decree-Law 57/2008, of 26 October 2008. Finally, it was argued that the defendant’s actions were in breach of ICAP’s code of conduct.
 

Legal issue

Does making statements about the quality of a specific service, where those statements are not objectively measurable, constitute a misleading commercial practice?

Decision

It was held by the court that the defendant did not present any compelling evidence that would support its claims about the quality of the service. Consequently, so the court held, it was impossible to lawfully use comparative advertising as the defendant did.

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

As there was no complete coverage in all the district capitals and islands (of Portugal), as the defendant had claimed in its contested advertisements, the defendants’ claim was held by the court to amount to a breach of the truthfulness principle, and was thus, unlawful.
 

  URL Decision Decision full text
EN N/A
PT http://www.icap.pt/icapv2/icap_site/deliberacao_detalhe.php?AG4JPQ51=ADotela9Xr1&AHAJJg5i=&AGoJNwtela9Xr1tela9Xr1=ADcJYA40&AGIJPQ5v=ADEJYw4xVmgtela9Xr1

Result

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

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