Brussels Court of Appeal Rules on Misleading Comparative Advertising

On 27 and 28 June 2013, the Brussels Court of Appeal (the “Court of Appeal”) delivered two judgments in relation to misleading comparative advertising practices by competing television, internet and telephone distributors Belgacom and VOO.

Article 19 of the Law of 6 April 2010 on Market Practices and Consumer Protection (Wet betreffende marktpraktijken en consumentenbescherming/Loi relative aux pratiques du marché et à la protection du consommateur - the “Law”) enumerates the cumulative conditions under which comparative advertising is permitted. In particular, pursuant to Article 19, §1, 1° of the Law, comparative advertising must not be misleading.

Belgacom/VOO: Case 1

The first case handled by the Court of Appeal concerned the advertisements of Belgacom and VOO for their broadcasts of football matches. From 2005 to 2011, Belgacom had the exclusive broadcasting rights for the Belgian Jupiler Pro League football matches. However, in 2011, Belgacom’s competitor Telenet acquired the broadcasting rights for three daily “main matches”. This meant that Telenet had the right to choose three daily football matches for exclusive broadcasts. Telenet, only active in Flanders and specific parts of Brussels, licensed these broadcasting rights to VOO for the French-speaking audience. Belgacom, in turn, was granted non-exclusive broadcasting rights for the remaining five matches.

Against this backdrop, VOO published an advertisement in a Belgian newspaper stating that, with certain VOO contracts, the consumer could watch the main Jupiler Pro League matches for free. Additionally, the advertisement also encouraged Belgacom customers to switch to VOO. On its website, VOO published the following statements about its offer: “the real football present” and “VOO has without doubt the best and most football”, implicitly comparing its offer to that of Belgacom.

In response to VOO’s advertising campaign, Belgacom published in the same newspaper a very similar advertisement for Belgacom’s football offer. Belgacom claimed to offer five football matches a day compared to VOO’s limited offer of three games. However, Belgacom’s advertisement did not specify that VOO broadcast three “main matches”. For this reason, VOO brought suit against Belgacom, claiming that Belgacom’s advertisement was misleading on the basis of Articles 88, 2° and 89, 1° of the Law (i.e., the rules on misleading market practices vis-à-vis consumers). Belgacom, in turn, argued that VOO’s statements on its website constituted unlawful comparative advertising in that they intently targeted Belgacom and allegedly were not objective.

While, at first instance level, the President of the Brussels Commercial Court had sided with Belgacom (See, VBB on Belgian Business Law, Volume 2013, No. 2, p. 4, available at www.vbb.com), the Court of Appeal ruled that Belgacom’s advertisement was also misleading and thus contrary to Article 19 of the Law. By omitting to say that VOO had the exclusive broadcasting rights for the “main matches”, Belgacom had unlawfully led the consumer to believe that VOO’s and Belgacom’s offers were similar. Accordingly, the Court of Appeal considered that Belgacom had provided misleading information about the characteristics of VOO’s product.

Belgacom/VOO: Case 2

The second case reviewed by the Court of Appeal concerned an e-mail sent by a Belgacom employee to certain resellers containing a comparative table of Belgacom’s and VOO’s services. The employee wrote that “[t]his is a wonderful comparative table that clearly shows to your client that Belgacom is very advantageous. Use it during your sales talk. The client will realise quickly what suits him”. VOO claimed on the basis of Article 96, 1° of the Law that Belgacom had engaged in misleading comparative advertising. Article 96, 1° of the Law prohibits any advertisement addressed to or reaching persons other than a consumer which, having regard to all elements of the case, misleads or may mislead that person about, amongst others, the characteristics of the goods or services and, in this way, may affect that person’s economic behaviour. The persons in question were the resellers to whom Belgacom’s e-mail had been addressed.

According to VOO, Belgacom’s comparative table not only contained material errors but also unlawfully made a comparison between Belgacom’s prices during a promotional period and VOO’s regular prices without mentioning this distinction. Belgacom, in turn, argued that the e-mail had to be considered in its context since resellers had the possibility to verify the information provided. Also, according to Belgacom, VOO did not prove that the resellers had in fact used the information or that the comparative table was capable of influencing the economic behaviour of the resellers.

The Court of Appeal confirmed that the President of the Brussels Commercial Court had rightfully found in favour of VOO and dismissed all of Belgacom’s arguments in defence. According to the Court of Appeal, it should be assessed for each message separately whether or not it is misleading. Also, it was not necessary to prove that the reseller had actually used the information. Pursuant to Article 96, 1° of the Law, it is sufficient that the advertisement is capable of misleading its addressee. Lastly, the Court of Appeal considered that the advertisement was capable of influencing the economic behaviour of the reseller since the e-mail had encouraged him to use the table during his sales talks. The comparative table would be deprived of its purpose if the reseller still had to check the information provided in the table against information received through other channels.