Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (d)

A discrepancy between the information in the audio content and the information in the visual content of an audiovisual advertisement, constitutes a misleading advertisement. 

The defendant imposed a fine amounting to CZK 300,000 on the plaintiff due to a violation of the Act on Regulation of Advertising and the Act on Radio and Television Broadcasting Operations, based on the following facts:

 

- the plaintiff had launched a television advertisement for a major telecommunications provider. The advertisement consisted of visual and audio content broadcasted simultaneously. However, the visual content differed from the audio content. The visual content displayed two prices for the advertised product - CZK 799 i.e. a price excluding VAT, and CZK 950.81 i.e. a price including VAT. The price with VAT was displayed in minor characters under the price excluding VAT;

- the audio content accompanying the visual content did not mention the difference in price;

- the advertisement was broadcasted on all major nationwide TV channels.

 

The defendant held that such an advertisement (by displaying the price excluding VAT, which is much lower than the actual price to be paid by the customer) could mislead customers and therefore considered it to be an unfair commercial practice under the Consumer Protection Act.

 

The plaintiff challenged the decision of the defendant, stating that the advertisement did not intend to mislead the consumers. The plaintiff stated that the price excluding VAT was displayed in order to attract customers who are registered tax payers that would therefore pay less for the advertised product. The plaintiff also stated that the advertisement could not be regarded as deceptive, pointing out that it had also included the price including VAT together with the price excluding VAT.

The plaintiff demanded to annul the fine imposed by the defendant.

The Municipal Court in Prague, i.e. the court in first instance, dismissed the action brought by the plaintiff against the decision of the defendant. In the court's opinion, the defendant's decision was validly motivated (decision of the first instance No. 6 Ca 84/2009 - 29, dated 13 October 2009, unpublished). The plaintiff appealed to this decision but the appeal was dismissed as well on similar grounds. 

The court held that the advertisement in the format in question, qualifies as deceptive advertising.

The court based its ruling on the fact that the audio content and visual content of the advertisement did not provide the same information, hence the customer can therefore be easily misled.

The court further qualified the plaintiff's statement about registered taxpayers as irrelevant. 

 

Does a discrepancy between the information in audio content and the information in visual content of an audiovisual advertisement constitute misleading advertising? 

URL: http://www.nssoud.cz/files/SOUDNI_VYKON/2010/0038_9As__100_20101118105323_prevedeno.pdf

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The court denied the entire request of the plaintiff and confirmed that the advertisement had to be qualified as an unfair commercial practice.