Combating Illegal Publicity/Propaganda Behaviour of Businesses:
Day 2: Types of Remedies, Enforcement, Investigating and
Punishing False Publicity/Propaganda
Frank Bøggild
THE TOPICS – THE AGENDA OF TODAY
How to collect the evidence for investigating and punishing
false publicity/propaganda?
How to conduct the punishment of false publicity/propaganda
(i.e. types of remedies, determination of remedies in specific
case, enforcement etc.)?
THE MOST IMPORTANT EU FRAMEWORK
EU DIRECTIVE 2006/114
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Article 5 (1): Member States shall ensure that adequate and effective
means exist to combat misleading advertising and enforce compliance
with the provisions on comparative advertising in the interests of
traders and competitors.
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Such means shall include legal provisions under which persons or
organisations regarded under national law as having a legitimate
interest in combating misleading advertising or regulating
comparative advertising may: (a) take legal action against such
advertising; or (b) bring such advertising before an administrative
authority competent either to decide on complaints or to initiate
appropriate legal proceedings.
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2. It shall be for each Member State to decide which of the facilities
referred to in the second subparagraph of paragraph 1 shall be
available and whether to enable the courts or administrative
authorities to require prior recourse to other established means of
dealing with complaints, including those referred to in Article 6.
CIVIL ACTIONS – HOW TO COLLECT EVIDENCE
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If the plaintiff is a business (a competitor):
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Applying ordinary principles in the Administration of Justice Act:
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It is for the plaintiff to prove his case but the burden of proof may
shift with regard to comparative advertising and the use of factual
statements in advertisements
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Normally submitted evidence: E-mail correspondance, direct mails,
advertisements, TV commercials, etc.
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Witness statements – the duty to give evidence
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Request to the other side for further and better particulars – and
the use of adverse inference
THE DANISH CONSUMEROMBUDSMAN
THE DANISH CONSUMEROMBUDSMAN
THE CONSUMEROMBUDSMAN
An independant – but goverment-funded - body
invented in 1973
Section 22: It is the responsibility of the Consumer
Ombudsman to monitor compliance with The Marketing
Practices Act, especially in the interests of consumers.
Most important tasks: To ensure that business complies
with the Act and the principles of fair marketing practises in
general
Strategy and mission: Negotiation, dialogue and
enforcement are the cornerstones of his strategy
Enforcement includes power to issue administrative fixedpenalty notices and to institute prosecution
HOW TO COLLECT EVIDENCE
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The Consumerombudsman is reading newspapers, watching TV, surfing
on the Internet, etc.!
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Consumers’ complaints – or competitors’ complaints
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Police investigations: Eg. taking statements from witnesses
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Section 22 (2) The Consumerombudsman may require the disclosure of
all details considered necessary for his activities.
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However: The European Convention on Human Rights includes the
privilege against self-incrimination. Therefore, in unlawful marketingcases a business cannot be ordered/forced to provide the
Consumerombudsman or the police with information in matters
regarding potential criminal offences
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Subsequently all evidences are presented to the court which then
decides the matter on the merits
CONSUMER FORUM OF EAST ASIA NATIONS
ICPEN – COUNTRY NEWS - DENMARK
ECONSUMER.GOV
ECONSUMER.GOV – REPORT YOUR COMPLAINT
CONSUMEREUROPE.DK
CONTACT DATA
Frank Bøggild, Partner, Attorney-at-Law
Kromann Reumert
Sundkrogsgade 5
DK-2100 Copenhagen
Denmark
Tel:
+45 38 77 45 95
Mobile:
+45 24 86 00 11
E-mail:
[email protected]