On 17 July 2019, the President of the Brussels Enterprise Court issued a judgement about comparative advertising relating to 4G internet speeds.
Comparative advertising is defined as any advertising which explicitly or implicitly identifies a competitor or goods or services offered by a competitor (Article I.8 of the Code of Economic Law). In order to be lawful, comparative advertising (inter alia) must not be misleading and has to compare one or more of the essential, relevant and verifiable characteristics of the goods and services (Article VI.17 of the Code of Economic Law) in an objective manner.
In November and December 2018, Telenet advertised that it provided the fastest 4G network in Brussels. On its website, Telenet stated that its claim was based upon a study carried out by an independent research agency in October 2018. On billboards, however, Telenet stated that the tests had been carried out between 2 and 6 August 2018.
In November 2018, Proximus instructed the same research agency to redo the tests. Tests performed on 9, 10 and 12 November 2018 showed that the Proximus 4G network in Brussels provided faster speeds than Telenet’s network. Proximus therefore asked Telenet to stop its advertising. Because Telenet refused, Proximus initiated cessation proceedings before the President of the Brussels Enterprise Court claiming that Telenet’s advertisement was misleading and compared unverifiable elements.
The President ruled that Telenet’s advertising was indeed misleading and considered that:
- Telenet’s billboard advertising erroneously stated that the tests were performed in August 2018 and not in October 2018;
- Telenet’s advertising was in any case misleading since more recent test results showed that the claim was outdated. The fact that Telenet, in the course of the proceedings, provided new test results from December 2018 and February 2019 which showed that the decrease in Telenet’s speeds was only temporary, does not change the misleading character of the advertising during the period of that decrease;
- Although Telenet’s advertising stated the period during which the tests were performed, this information was only provided in small print and was (much) less visible than the “fastest 4G” claim.
Referring to the Nemzeti case from the EU Court of Justice (Case C-388/13), the President also stressed that the fact that Telenet was not at that time aware of the more recent test results from Proximus, and therefore did not act deliberately, does not change the misleading nature of its advertising.
The President also found that Telenet’s comparative advertising was not sufficiently verifiable since it failed to state clearly the other providers with which the internet speeds had been compared and what the individual score of each provider was, and it also failed to state where consumers could find and verify such information.
During the proceedings, Telenet lodged a counterclaim against Proximus for similar comparative advertising about internet speeds. Telenet claimed that Proximus continued to use the results of a download speed comparison for the period May-June 2018 on its website even after it had received a copy of test results from the Belgian telecom regulator showing that Telenet’s network offered the fastest internet speeds in Belgium. For the same reasons as above, the President also found Proximus’ comparative advertising to be misleading.
However, the President dismissed Telenet’s claim that Proximus’s comparative advertising was also insufficiently verifiable. According to the President, Proximus stated the compared services as well as their respective speeds per provider in its advertising. As such, consumers had sufficient information to verify the correctness of Proximus’s comparison. The fact that this information did not enable consumers to verify whether the specific speeds stated were also materially correct does not imply that an advertiser of mobile telecommunication services must state or make available all the elements and parameters used (such as the length of individual test sessions, where the tests were performed, the type of mobile phone used, the radio signal’s attenuation, etc.) in order to enable consumers to perform the tests or to have them performed.
Please contact Karel Janssens for further information about this case and/or for general legal advice relating to advertising and unfair trade practices.