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). One of the conditions for comparative advertising to be lawful is that it must not be misleading (Article VI.17 of the Code of Economic Law). On 30 October 2018, the Brussels Court of Appeal issued a judgment in a case on comparative advertising relating to internet download and upload speeds. The facts are set out below.
In 2014, Mobistar (now Orange Belgium) asked the independent research agency Commsquare to compare internet download and upload speeds through the Mobistar, Proximus and Base 4G networks. The tests covered the period between 6 February 2014 and 5 March 2014. On the basis of the results, Mobistar claimed on its website that it provided “the fastest 4G network” in Belgium. In its advertising, it referred to tests performed by Commsquare in February 2014. Shortly afterwards, however, Proximus also had Commsquare perform tests, this time covering 4G download and upload speeds during the first quarter of 2014. These tests revealed that the Proximus network provided the fastest download and upload speeds during this period. Proximus therefore asked Mobistar to remove its claim from its website. As Mobistar refused, Proximus initiated cessation proceedings before the President of the Commercial Court of Brussels (now the Enterprise Court). The President found Mobistar’s comparative advertising to be misleading, a decision which Mobistar appealed before the Brussels Court of Appeal.
In its judgment of 30 October 2018, the Court of Appeal first referred to the definition of misleading advertising in the EU Directive concerning misleading and comparative advertising (2006/114/EC). In accordance with Article 2 of the Directive, “misleading advertising means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor”. By reference to the Lidl/Colruyt case before the Court of Justice of the EU dated 19 September 2006 (C-356/04), the Court then stated that it is for national courts to ascertain in the circumstances of each particular case, and bearing in mind the consumers to which the advertising is addressed, whether the latter may be misleading. The national court must take into account the perception of an average consumer of the products or services being advertised, who is reasonably well informed and reasonably observant and circumspect. Also, in carrying out the assessment, courts must take account of all the relevant factors in the case, having regard to the information contained in the advertising and, more generally, to all its features.
Mobistar argued that its advertising was not misleading as it did not create the impression that Mobistar ‘at all times’ provided the fastest 4G network. According to Mobistar, it only indicated that, on the basis of tests performed in February 2014, its network provided higher internet speeds than those of Proximus and Base. Mobistar stated that as such, the average consumer was aware that the claim only related to February 2014.
The Court of Appeal did not agree with Mobistar. The Court considered that Mobistar’s reference in its advertising to the source of its claim, i.e. Commsquare’s tests of February 2014, did not imply that the consumer was aware of the fact that the claim only related to February 2014. This is particularly the case as Mobistar published its fastest internet speed claim and the test results on its website for several months. As such, Mobistar gave the impression that these figures and claim still applied, even though Mobistar was aware of the new results of the tests done in April 2014. The Court found that Mobistar’s advertising was likely to influence the economic behaviour of consumers as a network’s internet speed is one of the most important criteria when choosing between mobile telecom providers. The Court therefore concluded that Mobistar’s comparative advertising was misleading and confirmed the contested judgment.
Please contact Karel Janssens for further information on this case and/or for general legal advice relating to unfair trade practices.