The guidance has been published to help countries and companies
comply with a piece of legislation that poses "a number of
challenges", according to the guidance.
"Since the adoption of the Directive, Member States have enacted
national transposition laws. This poses a number of challenges,
especially if one considers the legal impact of full harmonisation
in an area characterised by considerable differences in national
policy, style and enforcement techniques," it said.
"In order to ensure that both consumers and traders are subject
to the same rules across the EU, it is very important that national
authorities and courts contribute to the uniform implementation and
consistent enforcement of the Directive. This document aims at
providing guidance on the key concepts and provisions of the
Directive perceived to be problematic."
It clarifies the status of the social networking activities that
companies use to market and sell their goods and services.
"Social media, which include blogs, social networking sites,
have become important avenues for commercial practices, especially
hidden ones," says the guidance. "For example, several Member
States have reported that cosmetic companies have paid bloggers to
promote and advertise their products on a blog aimed at teenagers,
unbeknownst to other users."
"In such cases, the authorities considered that the bloggers
concerned were engaging in hidden commercial practices," it
said.
The guidance also said that increasingly popular online price
comparison websites could be controlled by the Directive, which was
transposed in to UK law as the Consumer Protection From Unfair
Trading Regulations.
"Unfair commercial practices may also occur on price comparison
websites," it said. "An obvious case is when an online price
comparison service belongs or is linked to a trader and is used to
advertise its products."
"For example, the site 'quiestlemoinscher.com' (literally
'whoisthecheapest.com'), a grocery price comparison service created
by a French major supermarket company, was considered by French
courts to be a trader's website and a tool for comparative
advertising," it said. "In the case of professional but independent
price comparison websites, the trader's activity consists of
sourcing prices from retailers and passing this information on to
consumer. Such service providers should therefore also be
considered as traders and they would therefore be bound by the
Directive's provisions."
The guidance focuses on other areas in which it thinks that
legislators, traders and consumers might need advice. It covers
definitions of 'traders' and 'transactional decisions'; guidance on
the treatment of vulnerable consumers; misleading environmental
claims; and confusing marketing.
The guidance also says that 'hidden traders' break the terms of
the Directive. This includes the practice of 'astro-turfing', which
is where a company pretends to be a consumer to leave positive
online comments in imitation of real grass roots support.
Some examples of its guidance are:
- After-sales services should reflect what the trader has
promised (for instance, where a computer is sold with a guaranteed
free hotline, the trader is not allowed to charge for its use);
and
- 'Hidden' traders breaking the rules may be a hotel website
including flattering comments supposedly by consumers which are
actually drafted by the hotel owner; or a bookshop advertising its
'customers' choice' books where customers have never been consulted
and the choice is made by the bookseller.
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