Is it unfair?
How to tell when a commercial practice is unfair
The burning question for consumers will undoubtedly be: "How can I tell when a particular commercial practice is unfair?"
- The Black List: practices that are ALWAYS prohibited
- Misleading with false information
- Misleading by leaving out information
- Aggressive marketing
- Other cases
Other cases: the "safety net" clause
Two defining criteria are used to identify an unfair commercial practice which is not caught under the specifics of misleading or aggressive practices. In this instance, a commercial practice is regarded as unfair – and prohibited – if it meets the following two, cumulative criteria:
1. The practice is contrary to the requirement of professional diligence
Professional diligence is roughly equivalent to professional ethics. A business person is expected to follow honest market practices and/or general principles of good faith in their field of activity.
2. The practice materially distorts or is likely to materially distort the average consumer's economic behaviour.
This means using a commercial practice to impair the consumer's judgement with the result is that the consumer decides to purchase a product or service that they otherwise would not have.