Comparative and misleading advertising : the position in Malta and the EU

Abstract

Advertising is a dynamic and powerful economic and social force in any society. This thesis attempts to delve into the notion of Misleading Advertising, as well as a particular advertising technique known as Comparative Advertising. It is to be pointed out at the very onset, that rules regulating Misleading and Comparative Advertising in Malta and the EU are various. This thesis does not go into detail on the wide-ranging latitude of laws and regulations. The scope of this thesis is limited to analyse the principal and most recent legislation regulating such advertising in Malta, namely the provisions regulating Unfair Practices under the Consumer Affairs Act. The focus on EU legislation is strictly on the horizontal measures regulating such advertising, specifically the Comparative and Misleading Advertising Directive that has been transposed into the Consumer Affairs Act. A brief overview of the general notion of Advertising is attempted in the First Chapter. Chapter Two delves into what a misleading advert is. An analysis of the standard of deception adopted by the Courts is attempted. The position in Malta and the EU are examined together. A critique to the Misleading Advertising Directive's shortcomings is made. The Third Chapter deals with Comparative Advertising. This relatively controversial aspect of advertising is examined highlighting its positive and negative aspects. The Maltese and EU position are reviewed together. A critical analysis of the crucial provision regulating comparative advertising in the Directive is made. Chapter Four delves into the rules regulating Unfair Competition under the Commercial Code, whereby it is established that there are no apparent inconsistencies with the rules in the Consumer Affairs Act. The final part of the Chapter gives a brief overview of the various other laws in Malta where Advertising is also regulated. This makes the situation rather complex and possibly confusing, hence requiring adequate reform in this area. The Fifth Chapter deals with the possible sanctions and remedies available to the aggrieved party under EU and Maltese Law. Some concluding remarks and possible reforms are attempted in the last Chapter.