Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
The Code states that marcoms should not mislead, unfairly discredit others or, in comparisons, denigrate the products, trade marks, trade names, other distinguishing marks, activities or circumstances of competitors (Rules 3.1, 3.42 and 3.43). The ASA does not always uphold complaints if an advertiser compares unfavourably the products or services of another provider. For example, Expedia Inc. complained about a Thomas Cook ad that stated “Experience over Expedia every time!” The ASA considered that Thomas Cook had been providing holidays to the UK market for significantly longer than Expedia and the claim was unlikely to mislead or be seen to denigrate Expedia’s service unfairly (Thomas Cook UK Ltd, 6 July 2006).
In addition to the Code’s requirements, marketers who publish advertisements that falsely denigrate the reputation of people, businesses or their products risk liability under the law of defamation or malicious falsehood.
Liability for defamation arises if the advertising tends to expose a person or business to hatred, ridicule or contempt or lowers their reputation in the eyes of members of the public.
Liability for malicious falsehood could arise if the ad makes a false statement and the marketer either knows the statement is false or is reckless about the truth of the statement. That can arise in comparative advertisements if they make false comparisons with a competitor’s products. The ASA upheld complaints about a DIY retailer ad that featured a price comparison and the claim “Cheaper than B&Q”. The ad did not list B&Q’s prices and the advertiser did not explain where it had obtained the prices. The ASA considered the price comparison was unfair (Rightway Ltd, 1 March 2006).
CAP is not an expert on the law, if they are concerned about the legality of a proposed advertisement, marketers should take legal advice.
See ‘Denigration and unfair advantage’.
Last modified : 03 August 2010