Abstract
Unlike Germany, English law never had a general statute governing unfair commercial practices. There were several instruments in place that regulated, in one way or another, unfair commercial practices. In the context of these instruments, English courts applied the benchmark of the ordinary person, the ordinary shopper, or similar benchmarks. Although the consumer was not expected to be particularly gullible and to treat advertising somewhat critically, the courts generally did not have particularly high expectations of the consumer. The Consumer Protection from Unfair Trading Regulations 2008 implemented the Unfair Commercial Practices Directive. The first cases confirm that the English courts still do not have particularly high expectations of the average consumer. Fraudulent practices can be challenged, also if it is not clear whether the average consumer (be it the actual average consumer or the average consumer as interpreted by the CJEU) is affected.
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Notes
- 1.
See e.g. G Schricker, ‘Die Bekämpfung der irreführenden Werbung in dem Mitgliedstaaten der EG’ (1990) GRUR Int. 118–119, T Lettl, ‘Der lauterkreisrechtliche Schutz vor irreführender Werbung in Europa’ (2004) GRUR Int. 90, G Howells, H Micklitz and T Wilhelmsson, European fair trading law; the Unfair Commercial Practices Directive (Aldershot, Ashgate, 2006) 5–6 and C van Dam, ‘De gemiddelde euroconsument – een pluriform fenomeen’ (2009) Tijdschrift voor Europees en economisch recht 10. See also I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 136.
- 2.
J. Davis, ‘Unfair competition law in the United Kingdom’, in M Hilty and F Henning-Bodewig (eds), Law against unfair competition: towards a new paradigm in Europe? (Berlin, Springer, 2007) 183, S Weatherill, ‘National report: United Kingdom’, in R Schulze & H Schulte-Nölke (eds), Analysis of national fairness laws aimed at protecting consumers in relation to commercial practices (report for the Directorate-General Health and Consumer Protection of the European Commission, 2003) 1 and G Howells and S Weatherill, Consumer protection law (Aldershot, Ashgate, 2005) 429–430.
- 3.
To some extent also the tort of defamation can also be seen as relevant to the reference consumer applied under English law. The benchmark applied in that context is similar to that related to the tort of passing-off. Defamation is dealt with very briefly in footnote 20 below.
- 4.
See the references below.
- 5.
See paragraph 5.2 of this book.
- 6.
Claimants can request an injunction or sue for damages, see J Murphy, Street on torts (Oxford University Press, 2007) 348–349.
- 7.
T Weir, An introduction to tort law (Oxford University Press, 2006) 196 and see J Murphy, Street on torts (Oxford University Press, 2007) 339. See on the development of the tort of passing off also C Morcom, A Roughton & S Malynicz, The modern law of trade marks (London, LexisNexis, 2008) 363–365.
- 8.
Erven Warnink BV v Townend [1979] 2 All ER 927.
- 9.
T Weir, An introduction to tort law (Oxford University Press, 2006) 197.
- 10.
J Murphy, Street on torts (Oxford University Press, 2007) 344.
- 11.
- 12.
See Bollinger v Costa Brava Wine Co. Ltd. [1960] Ch. 262. See also J Murphy, Street on torts (Oxford University Press, 2007) 345.
- 13.
Reckitt & Coleman Products Ltd v Borden Inc and others [1990] 1 WLR 491. See for the judgment of the Chancery Division of the High Court: Reckitt & Coleman Products Ltd v Borden Inc and others [1987] F.S.R 505, 512, and for the judgment of the Court of Appeal: Reckitt & Coleman Products Ltd v Borden Inc and others [1988] F.S.R. 601.
- 14.
Reckitt & Coleman Products Ltd v Borden Inc and others [1987] F.S.R. 505, 512. See also C Morcom, A Roughton & S Malynicz, The modern law of trade marks (London, LexisNexis, 2008) 378–379.
- 15.
Reckitt & Coleman Products Ltd v Borden Inc and others [1990] 1 WLR 491, 503.
- 16.
Reckitt & Coleman Products Ltd v Borden Inc and others [1990] 1 WLR 491, 508.
- 17.
See CJEU 22 June 1999, Case C-342/97, ECR 1999, p. I-3819 ( Lloyd Schuhfabrik) and paragraph 3.3 of this book.
- 18.
Consorzio del Prosciutto di Parma v Marks & Spencer plc et al [1991] RPC 351.
- 19.
Bollinger v Costa Brava Wine Co. Ltd. (No.2) [1961] 1Â W.L.R. 277. See also Consorzio del Prosciutto di Parma v Marks & Spencer plc et al [1991] RPC 351.
- 20.
A similar standard seems to be applied in the tort of defamation. In short, the tort of defamation deals with damage of reputation. The question that arises in this context is not so much whether the public is deceived or confused—as is the case with passing-off, but rather whether the public takes the statements seriously. De Beers Abrasive Products Ltd v International General Electric Co deals with this problem and emphasises that the question whether a claim is taken seriously is to be decided from the point of view of the reasonable man. This reasonable man is used to a certain degree of exaggeration (‘puffery’) and therefore takes advertising ‘with a large pinch of salt’. But the case emphasises that there are also limits. See De Beers Abrasive Products Ltd v International General Electric Co of New York Ltd [1975] F.S.R. 323, 329–330. See also A Hucke, Erforderlichkeit einer Harmonisierung des Wettbewerbsrecht in Europa (Baden-Baden, Nomos, 2001) 344 and I Ramsay, Advertising, culture and the law (London, Sweet & Maxwell, 1996) 15.
- 21.
G Howells and S Weatherill, Consumer protection law (Aldershot, Ashgate, 2005) 395.
- 22.
G Howells and S Weatherill, Consumer protection law (Aldershot, Ashgate, 2005) 397. Lacking any relevant published cases regarding the consumer benchmark applied, the Consumer Protection Act 1987 is not discussed in more detail.
- 23.
See the Consumer Protection from Unfair Trading Practices Regulation 2008,s Regulation 30.1.
- 24.
See C Twigg-Flesner et al. ‘An analysis of the application and scope of the Unfair Commercial Practices Directive’ (Report for the Department of Trade and Industry, 2005) 30, where it is argued that, ‘overall, the approach adopted by domestic courts is largely compatible with the concept of the ‘average consumer’ in European law.’ See also R Bragg, ‘Trade descriptions after the Unfair Commercial Practices Directive’, in C Twigg-Flesner, D Parry and G Howells (eds), The yearbook of consumer law 2008 (Aldershot, Ashgate, 2007) 341, who argued that the case law under the Trade Descriptions Act is in line with the case law of the CJEU, and I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 174, noting that ‘[t]he concept of the average consumer is not unfamiliar to UK courts faced with determining whether a misrepresentation is actionable at common law and establishing the standard of deception under the Trade Descriptions Act 1968.’
- 25.
See also G Howells and S Weatherill, Consumer protection law (Aldershot, Ashgate, 2005) 406, who note that ‘the statute makes no attempt to elaborate any sophisticated notion of the level of consumer gullibility in respect of which it seeks to provide protection.’
- 26.
Doble v David Greig Ltd [1972] 1Â W.L.R. 703.
- 27.
See C Twigg-Flesner et al. ‘An analysis of the application and scope of the Unfair Commercial Practices Directive’ (Report for the Department of Trade and Industry, 2005) 28–29.
- 28.
C Twigg-Flesner et al. ‘An analysis of the application and scope of the Unfair Commercial Practices Directive’ (Report for the Department of Trade and Industry, 2005) 29.
- 29.
See paragraph 2.7 of this book.
- 30.
R v AF Pears Ltd [1982] unreported. See C Twigg-Flesner et al. ‘An analysis of the application and scope of the Unfair Commercial Practices Directive’ (Report for the Department of Trade and Industry, 2005) 29.
- 31.
Clive Sweeting v Northern Upholstery Ltd [1982] TR L 5; [1982] 79 LSG 1258. Looking at Concentrated Foods Ltd v Champ [1944] K.B. 342, this was also the benchmark applied in another instrument dealing with deception of consumers, the 1938 Food and Drugs Act.
- 32.
Dixons Ltd v Barnett [1998] 153 JP 268. See also I Ramsay, Consumer law and policy (Oxford, Hart, 2007) 299.
- 33.
Clive Sweeting v Northern Upholstery Ltd [1982] TR L 5; [1982] 79 LSG 1258.
- 34.
Clive Sweeting v Northern Upholstery Ltd [1982] TR L 5; [1982] 79 LSG 1258.
- 35.
Ashurst v Hayes and Benross Trading Co Ltd [1974] unreported. See also C Twigg-Flesner et al. ‘An analysis of the application and scope of the Unfair Commercial Practices Directive’ (Report for the Department of Trade and Industry, 2005) 28. Similar to the German Scanner-Werbung case, it is questionable whether this argument would currently hold, taking into account the CJEUs judgment in Trento Sviluppo.
- 36.
Burleigh v Van den Berghs and Jurgens Ltd [1987] BTLC 337. See also C Twigg-Flesner et al. ‘An analysis of the application and scope of the Unfair Commercial Practices Directive’ (Report for the Department of Trade and Industry, 2005) 29.
- 37.
See also C Twigg-Flesner et al. ‘An analysis of the application and scope of the Unfair Commercial Practices Directive’ (Report for the Department of Trade and Industry, 2005) 28.
- 38.
Lewin v Purity Soft Drinks plc [2005] A.C.D. 81.
- 39.
Lewin v Purity Soft Drinks plc [2005] A.C.D. 81, p. 326.
- 40.
Lewin v Purity Soft Drinks plc [2005] A.C.D. 81, p. 327.
- 41.
Lewin v Purity Soft Drinks plc [2005] A.C.D. 81, p. 329.
- 42.
Southwark LBC v Time Computer Systems Ltd [1997] WL 1104489.
- 43.
R Bragg, ‘Trade descriptions after the Unfair Commercial Practices Directive’, in C Twigg-Flesner, D Parry and G Howells (eds), The yearbook of consumer law 2008 (Aldershot, Ashgate, 2007) 341. See similarly G Howells, ‘The role of the acquis communautaire in consumer law for a European contract law code—a comment’, in S Grundmann and M Schauer (eds), The architecture of European codes and contract law (Alphen aan de Rijn, Kluwer Law International, 2006) 272.
- 44.
As discussed in Chaps. 3 and 4 of this book, the CJEUs case law is also not always showing a clear image of the consumer benchmark, e.g. taking into account the contrast between the relatively low expectations of the consumer in trademark law and the relatively high expectations of the consumer in the context of the labelling doctrine.
- 45.
S.I. 1988/915. See on the CMAR also S Weatherill, ‘National report: United Kingdom’, in R Schulze & H Schulte-Nölke (eds), Analysis of national fairness laws aimed at protecting consumers in relation to commercial practices (report for the Directorate-General Health and Consumer Protection of the European Commission, 2003) 6–9.
- 46.
See Sect. 81, Schedule 2, Consumer Protection from Unfair Trading Regulations 2008.
- 47.
In the UK, unfair advertising has traditionally mostly been dealt with through self-regulation, administered by the independent Advertising Standards Authority (ASA). See also I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 276.
- 48.
See on the relationship between self-control and the CMAR also Director General of Fair Trading v Tobyward Ltd [1989] WLR 517, 522. See also G Woodroffe and R Lowe, Consumer law and practice (London, Sweet & Maxwell, 2007, 2010) 317 and G Howells and S Weatherill, Consumer protection law (Aldershot, Ashgate, 2005) 426. In addition, CMAR had little extra to offer because misleading advertising was already partly covered by the Trade Descriptions Act.
- 49.
CMAR, Regulation 5. The Office of Fair Trading is the authority responsible for enforcement of several instruments regarding competition and consumer protection law. See on the OFT also I Ramsay, Consumer law and policy (Oxford, Hart, 2007) 453–513.
- 50.
Director General of Fair Trading v Tobyward Ltd [1989] WLR 517.
- 51.
Director General of Fair Trading v Tobyward Ltd [1989] WLR 517, 521.
- 52.
G Howells and S Weatherill, Consumer protection law (Aldershot, Ashgate, 2005) 434–435 and H Collins, ‘Harmonisation by example: European laws against unfair commercial practices’ (2010) Modern law review 93.
- 53.
H Collins, ‘Harmonisation by example: European laws against unfair commercial practices’ (2010) Modern law review 96. See also I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 165. The Department for Business, Enterprise and Regulatory Reform (BERR) was the successor of the Department of Trade and Industry (DTI) and was later followed up the Department for Business, Innovation and Skills (BIS).
- 54.
S.I. 2008/1277.
- 55.
See also H Collins, ‘Harmonisation by example: European laws against unfair commercial practices’ (2010) Modern law review 92, P Cartwright, ‘Unfair commercial practices and the future of criminal law’ (2010) Journal of Business Law 618 and O Osuji, ‘Business-to-consumer harassment, Unfair Commercial Practices Directive and the UK—a distorted picture of uniform harmonisation?’ (2011) Journal of consumer policy 439.
- 56.
- 57.
See also McGuffic v Royal Bank of Scotland plc [2009] EWHC 2386.
- 58.
There has been ongoing discussion on the question of local enforcement. See I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 214–215.
- 59.
See Regulation 19 CPUTR 2008. See also H Collins, ‘Harmonisation by example: European laws against unfair commercial practices’ (2010) Modern law review 111–113 and I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 213 and onwards. See on the enforcement of the Directive in Scotland J Williams and C Hare, ‘Early experiences of the enforcement of the Unfair Commercial Practices Directive in Scotland’ (2010) Journal of Consumer Policy 377.
- 60.
H Collins, ‘Harmonisation by example: European laws against unfair commercial practices’ (2010) Modern law review 114–117.
- 61.
This was also expressed in the cost-benefit analysis conducted on behalf of the DTI: ‘the group did not like (and arguably did not fully grasp) the concept of the ‘average consumer’, as this is, they felt, a vague and nebulous concept, which is open to substantial interpretation.’ See G Allinson et al. The costs and benefits to business of simplifying consumer protection legislation: the options for change in the UK following the introduction of the Unfair Commercial Practices Directive (report on behalf of DTI Consumer and Policy Directorate) (London, DTI, 2006) 18.
- 62.
Department of Trade and Industry 2005, p. 30. See also C Twigg-Flesner et al. ‘An analysis of the application and scope of the Unfair Commercial Practices Directive’ (Report for the Department of Trade and Industry, 2005) 30.
- 63.
British Airways plc v Ryanair Ltd [2001] E.T.M.R. 24, 249.
- 64.
British Airways plc v Ryanair Ltd [2001] E.T.M.R. 24, 249. See also I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 137.
- 65.
Article 5 Directive. See also paragraph 2.7 of this book.
- 66.
Office of Fair Trading 2008.
- 67.
Idem, p. 69.
- 68.
SEC (2009) 1666. See also paragraph 2.7 of this book.
- 69.
See McGuffic v Royal Bank of Scotland plc [2009] BUS. L.R. 1108, dealing with the actionability or non-actionability of the Regulations for private individuals and Office of Fair Trading v Ashbourne Management Services [2011] EWHC 1237, on gym club memberships (which is discussed in more detail below).
- 70.
This is in line with the recommendations of the ‘Hampton Report’ on reducing administrative burdens. See P Hampton, Reducing administrative burdens: effective inspection and enforcement (2005) and P Cartwright, ‘Unfair commercial practices and the future of criminal law’ (2010) Journal of Business Law 635. As was already the case under the regime of the Control of Misleading Advertisements Regulations 1988, there is still an important role of the enforcement through self-regulation in the field of advertising.
- 71.
Office of Fair Trading v Purely Creative Ltd Industries [2011] EWHC 106. See on this case also I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 166 and 172–174.
- 72.
Office of Fair Trading v Purely Creative Ltd Industries [2011] EWCA Civ 920. See also CJEU 18 October 2012, Case C-428/11 ( Purely Creative) (not yet published in ECR). Unfortunately, no questions were asked regarding the general clauses of the Directive. The case was finalised by an order of the Court of Appeal of 19 March 2013, rejecting the appeal of Purely Creative and allowing the cross-appeal by OFT. See http://www.oft.gov.uk/shared_oft/consumer-enforcement/court-of-appeal-order.pdf (last accessed 21 February 2014).
- 73.
Office of Fair Trading v Purely Creative Ltd Industries [2011] EWHC 106, paragraph 62.
- 74.
See on the Adolf Darbo case of the CJEU paragraph 3.2.10 of this book.
- 75.
Paragraphs 66–67 of the judgment.
- 76.
Corresponding to Article 5 Unfair Commercial Practices Directive.
- 77.
See paragraph 82 of the judgment. See also I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 172.
- 78.
See paragraph 113 of the judgment.
- 79.
Paragraph 143 of the judgment.
- 80.
Office of Fair Trading v Ashbourne Management Services [2011] EWHC 1237. See on this case also I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 345–355.
- 81.
Paragraph 164 of the judgment.
- 82.
Paragraph 167 of the judgment.
- 83.
Paragraphs 171 and 173 of the judgment.
- 84.
CJEU 9 November 2010, Case C-540/08, ECR 2010, p. I-10909 ( Mediaprint). See also paragraph 3.2.11 of this book.
- 85.
See also I Ramsay, Consumer law and policy (Oxford, Hart, 2012) 302.
- 86.
See e.g. Director General of Fair Trading v Tobyward Ltd [1989] WLR 517, 522, applying the Control from Misleading Advertisements Regulations 1988.
- 87.
See Lewin v Purity Soft Drinks plc [2005] A.C.D. 81.
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Duivenvoorde, B. (2015). English Law. In: The Consumer Benchmarks in the Unfair Commercial Practices Directive. Studies in European Economic Law and Regulation, vol 5. Springer, Cham. https://doi.org/10.1007/978-3-319-13924-1_6
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