Taiwan Provincial English Studies Society was complained for violation of the Fair Trade Law by citing a letter issued by the Ministry of Education in the promotional information for the activity "National Junior High and Elementary School English Proficiency Ranking Test" and listing the Ministry as the directing office

Taiwan Provincial English Studies Society was complained for violation of the Fair Trade Law by citing a letter issued by the Ministry of Education in the promotional information for the activity “National Junior High and Elementary School English Proficiency Ranking Test” and listing the Ministry as the directing office

Chinese Taipei

Case:

Taiwan Provincial English Studies Society was complained for violation of the Fair Trade Law by citing a letter issued by the Ministry of Education in the promotional information for the activity “National Junior High and Elementary School English Proficiency Ranking Test” and listing the Ministry as the directing office

Key Words:

English proficiency ranking, Ministry of Education

Reference:

Fair Trade Commission Decision of December 19, 2002 (the 580th Commissioners' Meeting); Disposition Kung Ch’u Tzu No. 091211

Industry:

Other Educational Services (7990)

Relevant Law:

Article 21(3) of the Fair Trade Law

Summary:

1. This case resulted from a letter of complaint from the Ministry of Education regarding statements published by the Taiwan Provincial English Studies Society (TPESS) in its publicity announcements for the “National Junior High and Elementary School English Proficiency Ranking Test.” These materials contained the statements “Starting from the school year 2001, this Society was authorized by the Ministry of Education in letter Chiao Chung (2) Tzu No. 9053843 to conduct the National Junior High and Elementary School English Proficiency Ranking Test” and “directing office: Ministry of Education, Taiwan Provincial Government.” The aforementioned Ministry of Education letter, in fact, requested TPESS to “use its own discretion” regarding the test and indicated that the Ministry of Education did not commission TPESS for holding the activity. In addition, the Ministry of Education issued a letter on 19 September 2001 to TPESS asking that the false information in their publications be corrected. TPESS, however, continued to cite the aforementioned letter from the Ministry, thereby misleading the public. Hence, the Ministry asked the Fair Trade Commission (FTC) for assistance in resolving this matter.

2. The FTC’s investigation found that TPESS is a private organization and the Ministry of Education is not the competent authority in this matter. It was, therefore, not necessary to file with the Ministry for approval and recordation. Furthermore, the Ministry did not commission TPESS to administer the test in question, and with regards to TPESS’s letter reporting such, the Ministry sent a letter in reply refusing their request for recordation and asking the respondent to “use its own discretion.” However, when the Ministry subsequently received inquiries from the general public as to whether or not they had commissioned said test through the letter referenced in TPESS’s promotional materials, they immediately issued a letter asking TPESS to correct these false statements. In addition, the Ministry sent official letters to each county and city government asking them to inform all schools under their jurisdiction of the situation and subsequently issued a press release to clarify the matter. Prior to the administration of the relevant test in 2001, TPESS issued a letter to the Ministry of Education reporting their intention, to which they received a reply from the Ministry’s Central Taiwan Office asking them to “use their own discretion.” TPESS, however, felt it was generally understood that when conducting tests or activities related to academics, culture, physical education or other public interest activities, one simply needed to report such activity to the relevant competent authority for approval and recordation. Furthermore, they assumed it was common practice that, if not rejected, the competent authority could be listed as the directing or advising office. As the Ministry of Education is the competent authority in charge of educational affairs, then naturally TPESS would list them as the directing office. Moreover, they believed the phrase “use your own discretion” as used in the Ministry’s letter did not prohibit them from conducting the test. TPESS felt, therefore, that their listing of the Ministry as the directing office in their promotional information and their use of the reference number from the aforementioned letter should not be considered inappropriate. Furthermore, TPESS also included the original letter of reply in their promotional materials and upon receipt of the letter from the Ministry’s Central Taiwan Office requesting amendment of said promotional materials, TPESS immediately amended the phrase “this Society is authorized by Ministry of education letter …” to read “This society, in accordance with Ministry of Education letter No…” Upon receipt of the second letter by the Ministry demanding correction, the publication period for this test had already ended (at the end of September) and TPESS did not provide any further response or institute any corrective measures.

3. Grounds for disposition:
Based on the results of the FTC’s investigation and a comprehensive examination of the measures used by the Ministry of Education in handling this matter, the Ministry obviously did not consent to being listed as the directing office, nor did it consent to TPESS’s citing of the referenced letter. It could therefore be assumed that the publishing of the statements in question in the advertising materials for TPESS’s National Junior High and Elementary School English Proficiency Ranking Test mislead a certain amount of the general or related public to believe that the aforementioned test was sponsored and administered by the Ministry. Therefore, the content of those statements were of a false and misleading nature. Moreover, the Ministry of Education clearly stated that the advertisements in question would mistakenly lead the general public to believe that the test administered by the respondent was commissioned by the Ministry, and TPESS should therefore have understood the Ministry’s position on the issue. TPESS’s assertion that the Ministry did not expressly state in its letter that they were not permitted to administer this test seems an effort to avoid responsibility. Finally, although TPESS included the original letter they received from the Ministry of Education in their promotional materials, comprehensive examination of the entire document revealed that the statements in question were printed prominently in large bold lettering and placed at both the top and bottom of the advertisement, while the original letter from the Ministry was reduced in size and placed in the bottom left-hand corner. Although the general public could see the contents of the letter, the bold writing at the top and bottom would mislead readers into mistakenly believing that the administration of the test in question had been commissioned by the Ministry of Education under the referenced letter. As such the FTC found TPESS in violation of the mutatis mutandis application of Article 21(3) of the Fair Trade Law (FTL) through Article 21(1) of the same law. Weighing the motives behind the actions, the duration of the illegal activities, the degree of cooperation with the investigation and the scale of the enterprise, the FTC imposed an administrative fine of NT$100,000 pursuant to the provisions of the forepart of Article 41 of the FTL.

Summarized by Mai, Huei-Li; Supervised by Cheng, Chia-Lin