European Commission

 

Case detail

B a c k

Directive article Annex I al2 28.
National ID 4Ob95/13v
Country Austria Decision date 09/07/2013
Common name Videospiel D‑Universe Decision type Supreme court decision
Court Oberster Gerichtshof (Wien) Plaintiff(s) Verein für Konsumenteninformationen (Association for Consumer Information)
Court translation Supreme Court (Vienna) Defendant(s) Unknown
Subject videogames
Keywords advertisementblack listchildrenparents

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Headnote

Indirect exhortations to buy products, aimed at children, do not automatically constitute aggressive commercial practices.

Facts

The defendant had operated a web site www.d******.de and advertised both on this website and on Austrian television, a video game "D*****-Universe" for schoolchildren (up to 14 years).

The advertisement contained general wording such as "now available", "available now in retail" and also included information on the options how to order the product (e.g. a reference to the website link where the products could be purchased). The advertisement also contained general descriptions of the game as desirable.

Both the first instance judge and the court of appeal had ruled that this practice was aggressive, in particular due to the fact that information was given on how to purchase the product (links on the website). According to both instances, these expressions were direct exhortations aimed at children.
 

Legal issue

To what extent does an advertisement directed to children, constitute an unfair commercial practice?

Decision

The Supreme Court followed its earlier case law (4 Ob 244/12d) and made a difference between "direct exhortation", i.e. advertisements formulated as a request to purchase a product (e.g. "get a sticker album" etc.), and mere "indirect exhortations".

According to the Supreme Court, there is an indirect exhortation if the consumer has to make an intermediate step between the advertisement and the decision to purchase and if the advertisement only generally describes the product as desirable and presents the options to move ahead with the purchase.

In the case at hand, the Supreme Court considered that the expressions used by the defendant were indirect exhortations. The Court repeated that advertisements directed to children do not automatically constitute unfair commercial practices.
 

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Result

The Supreme Court has overruled the decisions of both the first instance judge and the court of appeal.

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