Clever Marketing or Misleading Advertising? – the National Consumer Agency shows its’ teeth

One of Ireland’s popular Sunday newspapers, the Sunday Tribune went into receivership in February 2011 and ceased publication with immediate effect. In an alleged attempt to entice readers to their publication, another Sunday newspaper the Irish Mail on Sunday produced a special edition on February 6th 2011 with a special wraparound cover featuring the same masthead, colouring and layout as the former Sunday Tribune and with a heading saying “a special edition designed for readers of the Sunday Tribune”. Around 9,000 copies of the “special edition” were sold.

Sunday Tribune 2The receiver acting for the Sunday Tribune instigated High Court proceedings for passing off shortly afterwards. In addition the National Consumer Agency received complaints from purchasers of the newspaper who felt they had been tricked into buying what they thought was the Sunday Tribune only to discover it was the Irish Mail on Sunday. The National Consumer Agency brought 6 charges under the Consumer Protection Act, 2007 in the District Court against Associated Newspapers (Ireland) Limited, the owners of the Irish Mail on Sunday.

The case taken by the receiver for passing off was settled before the High Court in July 2011 on undisclosed terms. However the prosecution of the publisher was heard before the District Court on 25th January 2012 and the publisher was found guilty of 4 of the 6 charges. Despite the Judge accepting that the publisher was not deliberately trying to deceive consumers he described the idea as an “overzealous” marketing tactic to attract readers from the former Sunday Tribune and a breach of the Consumer Protection Act. The Company was given the Probation Act and ordered to pay the costs of the proceedings (approximately €25,000) and €15,000 to a charity nominated by the National Union of Journalists. 

The National Consumer Agency was commended for its work by the Judge hearing the prosecution. Business owners should note that the Agency is more likely to prosecute for what it sees as attempts to deliberately mislead consumers and although in this case the Probation Act was applied, criminal convictions are a possibility. The remedies available under the Consumer Protection Act are much stronger than those available to, for example, the Advertising Standards Authority of Ireland who generally will only order withdrawal of the marketing campaign or an amendment to it. However a similar complaint to the National Consumer Agency could carry more much serious consequences.  

For further information please contact Conor Griffin at cgriffin@duncangrehan.com.