Constraints on space might justify print ads for online sales omitting 'material information', rules EU court

The Court of Justice of the EU (CJEU) said limitations on space in print might justify businesses instead presenting the material information to consumers online when they access the "sales platform".

However, it said it would be up to national courts to determine on a case-by-case basis whether the space constraints are so great as to merit the exclusion of the information in print, and whether the presentation of the information online is communicated sufficiently "simply and quickly" so as to comply with EU advertising laws.

The CJEU was ruling in a case referred to it from Germany where trade body VSW has challenged whether a print advert run in a Sunday newspaper by online sales platform DHL Paket was in compliance with the advertising laws.

The DHL Paket ad promoted five products by different suppliers, but details of the identity and geographical address of the suppliers could only be found by consumers that followed up the advert on DHL Paket's sales platform online, according to the judgment.

The omission of material information that the average consumer needs to take an informed transactional decision can be classed as a misleading commercial practice under the EU's Unfair Commercial Practices Directive if it "causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise".

Where there is an invitation to purchase, material information that should be communicated, if not already apparent from the context, includes the product's main characteristics, the geographical address and the identity of the trader, information about the price and delivery arrangements, among other things.

Businesses that hide or only provide material information in "an unclear, unintelligible, ambiguous or untimely manner" are regarded to have engaged in a misleading omission if it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

In determining whether the omission of material information should be regarded as a misleading practice in breach of the Directive, the factual context, including the features and circumstances of the commercial practice, and the limitations of the communication medium, must be taken into account.