How do we determine the unfairness of a commercial practice? It is unfair according to law if it is misleading or aggressive. Directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market illustrates when a commercial practice is misleading or unfair.
A misleading commercial practice is one containing false information, or, in any way, including its general presentation, deceives or probably would deceive the average consumer, and which is likely to cause the consumer to make a decision related to a transaction which he would not have otherwise taken. This applies even if the information is correct, regarding , for example, the nature, existence or characteristics of the product, the extent of the trader’s commitments, the price or how it is calculated, the need for a service, part, replacement or repair, or the consumer’s rights.
Likewise, it is misleading if it involves: any marketing of a product, including comparative advertising, which creates confusion with any products, trademarks, trade names or of a competitor; or if a trader does not comply with firm commitments contained in codes of conduct by which the trader has undertaken to be bound, and he has indicated that he is bound by this code.
A commercial practice shall be regarded as misleading if the information needed by the average consumer to make an informed decision to purchase a product or service is omitted, leading him to make a decision which he would not have otherwise taken. If the trader does provide such information, but in a way that the consumer is unable to understand it or it is presented in an ambiguous manner, then that is also misleading.
The law also states which misleading commercial practices are unfair and prohibited in all circumstances:
- Falsely claiming to be a signatory to a code of conduct;
- Bait advertising – that is, inviting customers to purchase products at a specified price without indicating whether he is actually in a position to deliver such goods, or if the trader shows a faulty sample of a product, intending to promote a different product ;
- falsely claiming that a product is able to cure illnesses;
- Describing a product as being “free”, if the consumer has to pay anything other than the unavoidable cost of replying to the trader and collecting or paying for delivery of the item;
- Stating or creating the impression that a product can legally be sold when this is not the case;
- Seeks payment for a marketed product that the consumer has not ordered.
An aggressive commercial practice significantly restricts a consumer’s freedom of choice, through harassment or coercion, leading him to make an unwanted decision. The law states that in determining whether such practice is aggressive, account is taken of, for example, the timing, the use of threatening or abusive language or behavior; the exploitation by the trader of any specific misfortune or circumstance which is grave enough as to impair the consumer’s judgement, or any threat by the trader to take any action that cannot legally be taken.
These are some examples of aggressive practices that are prohibited in all circumstances by law:
- If the trader creates the impression that the consumer cannot leave the premises until a contract is formed,
- Bothering the consumer by making telephone calls, fax, e-mails or by other forms of distance communication, except where it is legally justified to enforce a contractual obligation;
- Visiting the consumer’s home, ignoring the consumer’s request to leave or not to return except in those circumstances justified, under law, to enforce a contractual obligation;
- Creating the false impression that the consumer has won or will win, a prize when this is not true and demands money from the consumer in order to obtain such a prize;
- Informs in no uncertain terms, the customer that his livelihood will be at risk if he does not buy the product.