This report examined the recent draft directive concerning misleading and unfair advertising. It is based on Article 100 of the EEC Treaty dealing with the approximation of national laws and aims at eliminating discrepancies in the national laws which deal with unfair and misleading advertising. We consulted a number of bodies on it. We examined the implications of this draft directive in the light of the recently enacted Consumer Information Act, 1978, which makes it an offence to apply a false trade description or misleading trade description to goods or to sell goods to which a false or misleading trade description is applied.
The directive covers the definition of " advertising ", which means the making of any pronouncement in the course of a trade, business or profession for the purpose of promoting the supply of goods or services. The proposal is directed against advertising which is either misleading or unfair, as defined. " Misleading advertising " means any advertising which is entirely or partially false, having regard to its total effect, and so on. " Unfair advertising " mainly includes any advertising which casts discredit on another person by improper reference to his nationality, origin, private life or good name, or injures, or is likely to injure, the commercial reputation of another person and so on, or exploits the trust, credulity or lack of experience of a consumer.
Since pronouncements must be made " in the course of carrying on a trade, business or profession for the purpose of promoting the supply of goods and services " neither political advertising nor advertising by private individuals falls under the scope of the draft directive, which Deputies and Senators will be amused to hear.
The other aspect of the draft directive which is very important is that it would impose an obligation on Member States to make " quick, effective and inexpensive " facilities available to persons affected by misleading or unfair advertising as well as to associations with a legitimate interest in the matter to take legal proceedings. The draft directive would require Member States to ensure that their courts are empowered to take certain specified actions, including the prohibition or cessation of misleading or unfair advertising, the publication of corrective statements and ensuring that the sanctions for infringing the directive are a sufficient deterrent.
The position in Ireland, as I said, is covered by the Consumer Information Act, 1978, which, amongst other things, makes provision for the granting of court orders prohibiting the publication of misleading advertisements. The Act also establishes the Office of Director of Consumer Affairs; this Act was passed by the Houses recently. The Director can institute proceedings in the High Court for orders requiring persons engaging in any such practices as are likely to be misleading or are misleading to refrain from such practices. That is one method of control we have. The other is a voluntary Code of Advertising Standards for the guidance of advertisers, distributors and advertising agencies. The code requires that all advertising should be legal, decent, honest and truthful. The proposed directive would appear to require the State to ensure that individuals affected and associations with a legitimate interest would have access to the Code of Standards Committee.
The views of the Sub-Committee, having looked at this, are set out in the report. The proposed directive would oblige Member States to provide persons affected by misleading or unfair advertising with " quick, effective and inexpensive " facilities for initiating legal proceedings. In the Joint Committee's view this proposal carries with it a number of important implications for Ireland of which the most striking would appear to be, as we say, the obligation to ensure that legal proceedings are inexpensive as well as quick and effective. That would seem to call for a review of the jurisdiction and constitution of the courts. Secondly, the proposed control of advertisements by civil actions could hardly exist side by side with the system introduced by the Consumer Information Act, 1978, which envisages the prevention of false or misleading advertisements by persuasion, court orders or criminal prosecutions. The proposal would give new causes of action to the individual against an advertiser for invasion of privacy, " improper reference to his . . . private life " or for exploiting his " trust, credulity or lack of experience ". The inclusion in the definition of " unfair advertising " of improper reference to a person's good name, false statements injuring his commercial reputation and defamatory comments concerning his firm, goods or services should entail an examination of the effect of the proposed directive on the present law of defamation, slander of goods and injurious or malicious falsehood. The right of action to be given to " associations with a legitimate interest " could lead to representative actions against advertisers for, inter alia, promoting social discrimination or influencing the public in any “ improper manner ”.
We saw a few difficulties as the Committee can see there. Whether changes in the law of this kind are desirable should, in the Joint Committee's view, be decided only by the Houses of the Oireachtas after a full examination of all the implications. The Committee seriously questions whether any of the other matters referred to can have an effect one way or another on the functioning of the Common Market and, consequently, doubts if they are within the competence of the Council to regulate by a directive made under Article 100 of the EEC Treaty. In the Joint Committee's view, then, it is far too soon to be contemplating major changes in the system initiated by the Consumer Information Act of only this year. The system should be given a fair trial and the Committee recommend that every effort be made to secure amendment of the proposed directive so as to ensure that any changes required in that system are kept to a minimum. In effect we are recommending amendments.
