Европейски портал за електронно правосъдие

Данни за случая
- Национален идентификатор: Supreme Administrative Court, Judgement 13653/2020
- Държава-членка: България
- Общоприето наименование:N/A
- Вид решение: Решение на върховния съд
- Дата на решението: 04/11/2020
- Съд: Върховен административен съд
- Заглавие:
- Ищец:
- Ответник:
- Ключови думи: misleading advertising

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Членове от директивата

Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 3
Уводна бележка

Vlogger posts which contain positive comments about a trader and negative comments about a competitor are not advertising. The favoured trader has no obligation to explicitly differentiate himself from the vlogger's messages.
Факти

A vlogger posted videos on the Noobclever Gaming streaming channel in which he expressed his views on the products offered by two competing companies that deal with online sales, delivery, and service of computers and computer equipment. The vlogger shows a clear preference for one of the traders and is kind to him, while for the other trader his comments are negative. The second trader submits a request to the Commission for Protection of Competition (CPC) for imposition of a sanction for unfair competition and misleading advertising carried out by the first trader.

In the course of the proceedings before the CPC it was established that the vlogger had acted independently, without the knowledge and consent of the favoured trader. This merchant did not order the videos, nor did he pay for their content, nor was he informed about their publication.

However, the CPC imposes a sanction on the favoured trader, as it considers that, although he did not order the videos in accordance with the rules of good commercial practice, he was obliged to publicly differentiate himself from their messages, as these videos undermine the prestige of his competitor.

The trader appealed to the Supreme Administrative Court against the decision of the CPC.
Правен въпрос

Are vloggers' videos advertising? Should favoured merchants publicly differentiate themselves from the content of videos posted by vloggers, given that they express negative opinions about their competitors?
Решение

The CPC and the SAC consider that, provided that the favoured trader has not ordered and paid for the videos, they do not constitute advertising within the meaning of the Competition Protection Act (LPC).

The SAC annulled the decision of the CPC, which imposed a sanction for violation of the LPC. The SAC considers that the competition law cannot impose an obligation on the favoured trader to explicitly differentiate itself from the vlogger's message, which undermines the prestige of its competitor, provided that he has not ordered or could not influence on this message. According to the SAC, this would mean imposing an obligation on one trader to protect the subjective rights of another trader, his competitor. Such an obligation cannot be part of good commercial practice. If the behaviour of the vlogger harms the interests of a certain business entity, then it must seek its liability under civil law and not under the LPC, as the vlogger is not an enterprise within the meaning of the LPC and does not participate in a violation committed by another enterprise.

URL: http://www.sac.government.bg/court22.nsf/d038edcf49190344c2256b7600367606/d25019e8d6ddf96bc2258614004d0539?OpenDocument

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Резултат

The Supreme Court of Cassation annulled the decision of the Commission for Protection of Competition, by which a property sanction was imposed on the favoured trader.

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