Advertising Standards decision expands “misleading”
A recent decision of the Advertising Standards Authority shows just how far advertisers must go to avoid their advertisements being held to be misleading says Geoffrey Sturgess of Solent law firm Warner Goodman Commercial.
The advertiser in question failed to make clear that a customer would still be charged for a repair even if that repair, although successful, was insufficient to make his Playstation functional again.
The Advertising Standards Authority has power to investigate complaints from the public and competitors. It is not able to impose penalties but misleading consumer advertisements are also a criminal offence under the Consumer Protection from Unfair Trading Regulations 2008. Those regulations are enforced by Trading Standards Departments.
The advertiser, M Blue Ltd, advertised its services on its website. Customers were offered a choice—a diagnostic test followed by a repair if the customer then wanted it, or self diagnosis and an order for a specific repair. The customer opted to self diagnose and M Blue carried out the requested repair. Having done so the Playstation was still not working so they did a diagnosis and concluded that there were other faults and that it was beyond economic repair. The customer was informed and charged for the repair he had ordered. He complained that it had not been made sufficiently clear to him that if the specified repair was not sufficient he would still be charged. The ASA agreed with him.
Geoffrey Sturgess commented: “This is a rather harsh decision and many businesses might believe that M Blue Ltd’s position was reasonable and not unfair. Interestingly the decision by the ASA does not mean that the customer has a right not to pay as an ASA finding of advertising unfairness does not allow him to escape his contractual liabilities. That would need a decision of a court that the contractual terms themselves were unfair or that he was misled into entering the contract in the first place
“It would however take a brave trader to insist on its contractual rights in these circumstances. Those dealing with consumers should be very sure that that their terms and conditions and any written explanations as to their goods and services are crystal clear and comprehensive”.
Buyers used to be told to beware and read terms and conditions carefully. For consumer sales the position is now reversed—it is the seller that needs to beware as consumer rights are so extensive.
Written by Geoffrey Sturgess, Consultant Solicitor – Warner Goodman Commercial
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