A misleading action occurs when a practice misleads through the information it contains, or through the deceptive presentation of that information, and causes or is likely to cause the average consumer to take a different transactional decision than he or she would have taken otherwise.
The definition of a misleading action used in the Directive has taken into account the current state of knowledge of how consumers take decisions in the market space. For example, new insights from behavioural economics show that not only the content of the information provided, but also the way the information is presented can have a serious impact on how consumers respond to it. The Directive has therefore explicit provisions to cover situations of practices which are capable of deceiving consumers "in any way, including overall presentation", even if the information provided is factually correct.
It is then for the national courts and administrative authorities to assess the misleading character of commercial practices by reference, among other considerations, to the current state of scientific knowledge, including the most recent findings of behavioural economics. Thus, for example, the use of defaults (choices consumers are presumed to make unless they expressly indicate otherwise) or the provision of unnecessarily complex information may, according to the circumstances of the case, prove misleading.
The Directive envisages three types of misleading actions: