EALA COUNTRY REPORT

Ireland has independent sovereignty and a separate legal identity since 1922. Local legal advice should be sought.

Self regulation by the industry-promoted Advertising Standards Authority of Ireland (ASAI) is the principal way advertising standards are maintained. Everyone must comply with the laws as set out in Acts of Parliament and as interpreted by the courts.

1.

Topic:

·        Advertisements with a social or political dimension and minor commercial content.

·        Use of Personality Images Without Consent

Who:

Advertising Standards Authority of Ireland

When:

May 2001

Where:

Ireland

What happened:

An objection was received to an advertisement in the press by the Irish section of Amnesty International. The subject matter of the ad was racism in Ireland and it included membership application forms with requests for donations.  It contained photographs of the Irish Prime Minister, Vice-Prime Minister and Minister for Justice with the headline “Some say they’re involved in racism” while underneath the pictures it read “others say they’re doing nothing about it”. The ad contained a variety of material and information on racism in Ireland and included a cut-out letter to the Prime Minister in support of Amnesty International’s call for action against racism. It also included a section where members of the public could join Amnesty International and pay a membership fee or donate money to the organisation.

The complaint was based on three grounds. (1) That the heading “some say they’re involved in racism” implied to readers that the three politicians could be seen as racist. (2) That the ad undermined the drive to convince Irish people they should take active roles in promoting racial equalities. (3) That the use of such advertising can spread to other forms of advertising to the detriment of

       Decision:

supply of information to the consumer.

The advertisers stated the purpose of the ad was to question if the Irish Government was doing enough to tackle racism. It drew attention to Section 1.4 of the Code of Advertising Standards which stated that the Code does not apply to ads whose principal purpose is to express a position on political, religious, industrial relations, social matters or areas of public concern. Although a donation form had been included 99% of the ad was taken up with racism issues and arguments.  They stated that even if the ad fell within the Code it was not in breach of it. They said it was sufficiently ambiguous that people would not consider the three politicians racist.

Complaints (1) and (3) were upheld. Even though advertisements with a political or social purpose are exempt from the Code once the advertisers used the ad to seek donations and membership it became fundraising which is defined as a service and comes within the Code. No written permission had been obtained from the three politicians for the use of their photographs. The advertisement was likely to bring advertising into disrepute to the detriment of consumer confidence in the industry in general.

Comment:

Although advertisements whose main purpose is to state a position on social or political matters or items of public interest are exempt from the Code of Advertising Standards this decision shows that if there is even a slight commercial purpose behind it then the ad comes within the ambit of the Code. Written permission should be obtained from anyone whose image is used in an advertisement as failure to do so is an exploitation of public reputation and in breach of the Code.

2.

Topic:

Television Advertising

·        Dangerous and irresponsible behaviour

·        Drink Driving

Who:

Advertising Standards Authority of Ireland

When:

      August 2001

Where:

Ireland

What happened:

 A television commercial for Pepsi-Max was the subject of an objection. It featured a young male parking attendant drinking a can of Pepsi-Max while at the same time driving a customers car and engaging in a series of dangerous stunts.

The advertisers said they did not wish to encourage dangerous driving or unsafe practices. However they claimed that any reasonable viewer would recognise that the ad was fantasy and not meant to be taken in a serious fashion. The main part of the ad featured the car being driven through the air between two skyscrapers which the advertisers claimed could not leave  anyone believing that this was reality TV. They stated that the Authority had to allow some creative licence for advertisers to portray situations which would never occur in real life.

Decision and             Comment:

The complaint was upheld as the Code requires that ads should not encourage dangerous behaviour except as a means of promoting safety. The Complaints Committee accepted that the central sequence of the ad would be seen by most people as fantasy. However the ad also featured high speed driving and sharp turns while the driver was drinking a can which was clearly unsafe and in contravention of the Code.

3.

Topic:

Television Advertising:

·        Exploitation of Sexuality: Widespread Offence

·        Beer Advert

Who:

Advertising Standards Authority of Ireland

When:

      August 2001

Where:

Ireland

What happened:

A television advertisement for Heineken beer was the subject of objections. The ad firstly featured a woman who pours out a bottle of Heineken followed by a man who does the same but pours too fast causing a large amount of froth to spill out over the glass. Complainants said the ad had strong sexual connotations and was pornographic and as such unsuitable for broadcasting.

The advertisers said the commercial was part of a series aired in Ireland for over a year. They said it was merely capturing the moment when the gentleman was doing his best to impress the lady who is smiling at him but it all went wrong. He forgets his beer and pours it into the glass to quickly. The advertisers saw no reason why this would be in breach of the Code.

Comment:

In this case the complaint was not upheld. There is a requirement in the Code that ads should not contain material which is likely to cause grave or widespread offence. Advertisers should avoid the exploitation of sexuality. The Complaints Committee noted that the commercial had been running  for a year. In contemporary Irish society the ad was unlikely to cause widespread offence and accordingly the complaint was not upheld.

4.

Legislation:

Consumer Information (Advertisements for Airfares) Order, 2000

Topic:

Advertising of Airfares: all media regulated

Who:

Department of Enterprise, Trade and Employment

When:

      March 2001

Where:

Ireland

What happened:

New legislation has now been introduced in Ireland entitling consumers to more detailed information with regard to the price of any airline ticket they are purchasing. From March 2001 all advertisements for an airfare must include the total price payable (as a single amount) for the airfare and also the currency in which it is payable. Advertisements must also include the monetary amount of any charge which will be imposed for the method of payment e.g. any surcharges for credit card bookings.

If there are any restriction in relation to the availability of the advertised airfare then for a written advertisement every restriction must be clearly specified and in the case of advertisements through any other medium the restrictions must be clearly stated during the course of the advertisement.

Comment:

This price regulation applies to all media including internet.

5.

Legislation:

European Communities (Protection of Consumers in respect of Contracts made by means of Distance Communication) Regulations, 2001  (Statutory Instrument No. 207/2001)

Topic:

Distance Selling

Who:

Department of Enterprise, State and Employment

When:

      June 2001

Where:

Ireland

What happened:

Ireland has now implemented Directive 97/7/EC (the Distance Selling Directive) by means of a Statutory Instrument. The Regulations allow for a seven day cooling off period when the consumer can cancel the distance contract without reason and with a full refund from either the day the goods were received or the day the contract for services was made. Excluded are services once begun,  the supply of goods where the price fluctuates according to financial markets, personalised goods or goods made to the consumers specifications and video/audio recordings or computer software where the package has been unsealed. The Regulations do not apply to any financial services, immovable property or goods sold at auction.

The supplier must furnish the consumer with information on conditions and procedures for exercising a right of cancellation, the geographical address of the place of business of the supplier, information on services and guarantees and conditions for the cancellation of the contract in the event that it is for over a year or an unspecified duration.

Comment:

The Regulations have introduced a greater level of protection for Irish consumers in contracts concluded by the Internet or which are not concluded on a face-to-face basis. Consumers who purchase online are now protected to a greater degree as the Regulations specifically refer to email communication as a method of distance selling.

6.

Litigation:

Montex Holdings Ltd –v- Controller of Patents, Designs and Trademarks

2001 IESC 29                                                                                              

Topic:

Will Trademark registration lead to simple confusion?

Who:

Supreme Court of Ireland

When:

      April 2001

Where:

Ireland

What happened:

We reported the High Court decision in this case at the EALA meeting in Sweden in June 2000 and confirm that the Supreme Court dismissed the appeal. It held that simple confusion or deception is sufficient to exclude registration under Section 19 of the Trademarks Act, 1963 and upheld the High Court’s ruling that there did not need to be an element of blameworthiness in causing confusion or deception in trademarks.

Comment:

The decision of the Supreme Court in this matter now means that simple confusion is sufficient grounds for refusal of registration of a trademark.  Whether the confusion arises on foot of an honest mistake or as part of a deception is not an issue.

7.

Topic:

Consumer Protection

Who:

Director of Consumer Affairs: public standards regulator

When:

      August 2001

Where:

Ireland

What happened:

The Director of Consumer Affairs has released her annual report for the year 2000. During the course of the year the Director conducted over 2000 investigations into a wide range of issue including complaints about financial services, misleading advertising, breaches of the Consumer Information Act, 1978 and product safety. The Director has now introduced a Code of Practice on transparency in credit charges for personal customers of financial institutions which states that interest, fees and charges imposed by financial institutions should be readily apparent to consumers deciding on which financial service to choose.

Comment:

The wide range of investigations conducted by the Director of Consumer Affairs over the past year shows how important the office is as a method of consumer protection.