Housheng Broadcasting Ltd. violated the Fair Trade Law for publishing false advertisement in violation of the Fair Trade Law
Chinese Taipei
Case:
Housheng Broadcasting Ltd. violated the Fair Trade Law for publishing false advertisement in violation of the Fair Trade Law
Key Words:
false advertisements, gifts
Reference:
Fair Trade Commission Decision of June 12, 1996 (the 243rd Commission Meeting); Disposition (85) Kung Ch'u Tzu No. 103
Industry:
Unclassified industrial and commercial service industry (7909)
Relevant Laws:
Article 24 of the Fair Trade Law
Summary:
1. Six members of the public including Mr. Chen have filed a complaint against Housheng Broadcasting Ltd. [hereinafter referred to as "Housheng"] for publishing false advertisements in China Times Express and procrastinating in holding its "Handsome Prizes for Radio Broadcast Listeners" sweepstakes. The complainants each paid NT$ 1,800 and received the magazine specified under item 1 of the advertisement, the remaining items 2 through 6 gifts, selection of presents and three-tier drawing did not take place.
2. The sanctioned party admitted to having been in charge of the advertisement and the mail in vote activity of "Handsome Prizes for Radio Broadcast Listeners." The print advertisement contained the following catch lines, "with NT$ 1,800, you can immediately receive (1) one year subscription to the magazine voted most popular; (2) one wonderful life discount card ; (3) one membership card of Singles Society in Chinese Taipei; (4) discount coupons for Ch'iu Ta glasses; (5) one set of cards for New Year greetings and universal purposes; (6) a Moses multi-purpose diary; (7) one of the six tasteful presents; and (8) the right to participate in the three-tier lucky drawing." In addition, there was the introduction on how to take part in the three-tier mail in vote activity along with a detailed list of the available prizes for the winners of the "Hit the Jackpot in a Row Sweepstakes." The advertisement also said that the ballot forms for the vote activity were published on the China Times Express every day. A review of the ballots published by the said newspaper read as follows: "just cut out the ballot, stuff it into an envelope and sent it back, -- you may take part in the lucky drawing;" "the first tier prizes include motorcycles, mobile phones, and flight tickets;" "the second tier prize is one admission ticket to the exhibitions held in the World Trade Center or the Taipei Airport;" "the third tier activity: those who have correctly answered the questions and enclosed a NT$ 35 stamp will receive one of the popular magazines listed in the advertisement." Based on the aforesaid information, general consumers would tend to think by paying with NT$ 1,800, they would be able to receive one year subscription to the particular magazine and all the other giveaways listed in the advertisement, and to participate in the three-tier drawing. Another way to gain the right to participate in the sweepstakes would be filling out the ballot forms published in newspapers or magazines. However, the sanctioned party claimed that in order to take part in the sweepstakes, the applicants should not only write on the ballot form the name of the host of the designated radio broadcast and the name of the special guest present in that program on the particular day, but also pay NT$ 900 to be the sanctioned party's "basic member" or pay NT$ 3,600 to be its "committed member" in accordance with the sanctioned party's "regulations for giving out prizes". In this case, as none of those who answered all the question correctly paid the membership fees, the company therefore did not hold any drawing.
3. Under Article 21 of the Fair Trade Law, misrepresentation or misleading manifestation in connection with a product's or service's price, quantity, quality, content made by an enterprise are the key elements for "false advertisement." In this case, no misleading advertisement was made in connection with the price, quantity, quality, and content of the "product" or the "service". Rather, it involved a false expression in connection with the "content of the promotions" in the advertisement. Therefore, the provisions of Article 21 have not been violated in this respect. However, Article 24 of the Fair Trade Law states, "except as otherwise provided for in this Law, no enterprise shall engage in any deceptive or obviously unfair acts that are sufficient to affect trading order." Accordingly, if the content of promotions held by an enterprise is deceptive or obviously unfair, it would be deemed a violation of Article 24 of the Fair Trade Law. The investigation shows that the aforesaid "regulations for giving out prizes" issued by the sanctioned party were sent to those who had answered all the questions correctly along with the gifts they deserved for having filled out all the right answers. As a result, there is no way for the general consumers to realize the fact that they had to answer all the questions correctly first and pay an additional membership fee to obtain the right to enter the sweepstakes. The sanctioned party concealed the aforementioned material information, which caused participants to have mistaken expectations in relation to the sweepstakes, thus constituting deceptive acts, in violation of Article 24 of the Fair Trade Law. The sanctioned party claimed that the first tier activity was misprinted as the third tier activity in the ballot form published in the China Times Express, and regardless of the sanctioned party's efforts to notify the China times Express of the error, the China Times Express failed to correct the error. However, the sanctioned party did not provide any relevant evidence to prove the aforesaid incident, and therefore it is concluded that the misprint story was merely an attempt to avoid liability for wrongdoing and should not be admitted.
Summarized by Lu, Li-na
Supervised by Wu, Ts'ui-feng
＊＊: For information of translation, click here
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