False Advertising in Latvia
The main sources for false advertising claims are the Advertising Law and the Unfair Commercial Practice Prohibition Law. The Advertising Law prohibits misleading advertisements and contains general requirements for advertising (such as discrimination prohibition, etc.) that shall not be breached. The Unfair Commercial Practice Prohibition Law contains definitions regarding improper conduct and provisions about (i) Commercial Practices Non-Complying with Professional Diligence, (ii) Negative Influence on a Consumer’s Economic Activity, (iii) Misleading Commercial Practices, and (iv) Aggressive Commercial Practices and Monitoring.
Definition and significant subdivisions
The Advertising Law and the Unfair Commercial Practice Prohibition Law both contain definitions for misleading advertising. The Advertising Law defines misleading advertising as advertising that in any manner, including its presentation, is directly or indirectly misleading or may be misleading and, due to its misleading character, affects the economic behaviour of a person or is harmful to a competitor. The definition of “misleading advertising” in the Unfair Commercial Practice Law results from the definition of “misleading actions.” The law states that commercial practices shall be regarded as misleading if, taking into account all the circumstances, the consumer, under the influence thereof, makes or may make a decision regarding the entering into of a contract, which he or she would not have made otherwise. Commercial practices shall be regarded as misleading when the performer of commercial practices unfairly utilizes the promotional measures of the trade of goods or services, including comparative advertising that causes confusion regarding the trademark of goods or services, the trade name, the company name of the manufacturer of goods or the provider of the service, or other distinguishing marks.
The Advertising Law definition states that advertising is misleading when it injures a consumer or competitor while Unfair Commercial Practice Prohibition Law mentions only consumers.
Main factors or elements of claim
In a false advertising claim, a plaintiff must prove that the advertising is directly or indirectly misleading for an average consumer and that the information is material (e.g., misleading price, misleading information regarding goods or services content, or other substantial details). The claim must be brought against an “advertiser,” a person who is the owner of advertised products or services, and it must be based on facts that confirm the misleading nature of the advertising at its very core—facts that fulfil the definition for misleading advertising. A false advertising claim may be brought by a “concerned person,” a person whose rights or legal interests are or can be infringed by the breach or involved person.
Moreover, if a plaintiff requests responsible authorities (e.g., Consumer Rights Protection Centre, the Competition Council, the Radio and Television Council, the Health Inspectorate, or the Food and Veterinary Service) to evaluate the advertisement and the authorities refuse to find the advertisement misleading, the plaintiff may initiate administrative proceeding to prove that the advertisement is misleading. These proceedings must be brought against the proper authorities in an administrative court, and the plaintiff will seek to annul the authority’s prior decision and request that the authority pass a new decision that is favourable for a plaintiff.
Types of relief available
If an advertisement has been found false, a plaintiff may obtain several types of relief. Usually a plaintiff seeks an injunction to prohibit publication of misleading advertisement and a withdrawal of the purchase or service agreement if the plaintiff has been misled by the advertisement and signed an agreement with the defendant. A plaintiff may also seek remunerations for damages that have occurred due to misleading advertising and compensation for moral harm caused by false advertising.
Concerning use of terms “misleading advertising” and “false advertising,” there are no differences between these concepts under Latvian law. They are identical and used interchangeably.
Defences available
Defendants will generally argue that they have not advertised in a misleading manner. A defendant may prove that, to an average consumer, the advertisement at issue is clear and understandable and has not violated any norms of Advertising law.
Evidence required to support advertising claims based on tests
Courts will consider the opinions of experts, sociological polls, and opinions of scientists when evaluating testing claims, but there are no specific evidentiary requirements in such cases.
Time period for asserting claim
A false advertising claim may be brought within 10 years after the publication of the false advertising. However, if the false advertising claim has been brought through the administrative process, the time limit to appeal the decision of the responsible authority before the court is one month after the unfavourable decision was handed down.
Eduards Dzintars, attorney at law of the Gencs Valters Law Firm in Riga.
Practising in fields of Advertising law in Latvia, Estonia, Lithuania.
T: +371 67 24 00 90
F: +371 67 24 00 91