An advertisement is a message that promotes a product or a service or gives information to the public. Advertisements may take many forms; such as press advertisements in newspapers or magazines, television and radio advertisements or signs in shops. Advertisements can also be transmitted directly to you by mail, fax, e-mail or text message. Advertisements are mostly made to encourage consumers to buy particular products or services. There are rules regarding advertisements in Ireland. The following information explains what your rights are with regard to advertisements.
The main legislation concerning advertisements in Ireland is the Consumer Protection Act, 2007. This Act sets out, among other things, various rules that apply to claims made about goods and services. In particular this Act protects consumers from misleading advertisements and ensures that trade is fair. Under the Act it is an offence for an advertiser/trader to make false claims about goods, services or prices. All types of communications that promote goods or services are covered by the Act. This includes advertisements, a notice in a shop or even a claim made by a sales assistant about a product or service. EU laws also ensure that misleading advertising is forbidden in all Member States. Under SI 134/1988 (European Communities (Misleading Advertising) Regulations, 1988), any person can apply to the High Court for an order prohibiting the publication of misleading advertising.
What is 'Misleading Advertising'?
Misleading advertising means advertising that deceives or is likely to deceive anyone that sees it. Misleading advertising may affect consumers’ choices regarding what they buy. It’s worth bearing in mind, that it may be an offence for a trader to advertise good or services if it is likely to mislead and therefore cause loss, damage or injury to the public. The following are examples of how advertisements can be misleading:
- Claims made about the characteristics of goods and services contain a false statement of fact. (Example: A product weighs 900g instead of 1 Kg)
- The price or manner in which the price is calculated, is misrepresented. (Example: Goods are not offered at sale prices, but advertised as such)
- The conditions of supply of the goods or service differs to that advertised. (Example: 'free delivery' actually involves a fee or charge)
- The attributes of the advertiser, (the advertiser's identity, assets etc.) were untrue. (Example: 'an Irish based company' turns out to be based abroad)
Advertisements can be deceptive in other ways. For example, if they conceal or leave out important facts. (Example: '50% off everything' - really only applies to certain items). Advertisements are also considered misleading if they create a false impression even if everything stated in the advertisement may be literally true.
Code of Advertising Standards
The Advertising Standards Authority for Ireland is an independent self-regulatory body of the advertising industry. They govern the Code of Standards for Advertising, Promotional and Direct Marketing. These codes of practice state that all advertisements must be legal, decent, honest and truthful. Find out more about the Advertising Standards Authority of Ireland (ASAI).
There are restrictions in Ireland on unsolicited direct marketing by telephone, fax, automated calling systems, email, Short Messaging Service and Multi Media Service. 'Spam' (originating in the EU) sent to subscribers is also illegal. Read more information about unsolicited commercial emails.
The requirements of the Consumer Protection Act and the EC Product Prices Regulations 2002 apply to online advertising. There is also some protection for consumers from misleading advertisements received by email. The law also gives individual member states the right in certain circumstances to act against online businesses to protect consumers, particularly potential investors.When you enter into a distance contract with a trader you have the right to expect the same consumer protection as you would have if you bought the goods in a local shop. The goods should be of merchantable quality, fit for the purpose intended and as described. Because you are entering into a distance contract you have additional protection under EU law. You can read more about buying online.
Premium Rate Telecommunications Services are regulated by ComReg by way of a Code of Practice. Callers who use premium rate telecommunication services are charged for a range of services (weather forecasting, traffic, sport) that are provided over the telephone. The code of practice requires that all services and promotional material must comply with the law (including legislation covering misleading advertising). Advertisements for these services must not contain or promote anything, which is in breach of the law, nor omit anything which the law requires. All promotions must not seek to take advantage of lack of consumer knowledge by using technical jargon or other methods.
Rights of redress
If you find an advertisement that you consider to be misleading you should contact the Competition and Consumer Protection Commission (CCPC). Under the Consumer Protection Act, the CCPC is empowered to take action against businesses which mislead the consumer. Where you have bought badly as a result of misleading advertising the CCPC cannot get compensation for you. You may have a case against the advertiser for compensation (you may be entitled to take a case in the Small Claims Court under the Sale of Goods and Supply of Services Act 1980).
The Advertising Standards Authority for Ireland will also deal with complaints from members of the public about possible misleading advertisements.
You do not have to prove that claims made in the advertisement are inaccurate. If the advertiser or trader cannot prove, on the balance of probabilities that the claims made in the advertisement are accurate, the advertisement will be judged to be misleading.