Control of Misleading Advertisements Regulations 1988
| Jurisdiction | UK Non-devolved |
| Citation | SI 1988/915 |
| Year | 1988 |
1988 No. 915
CONSUMER PROTECTION
The Control of Misleading Advertisements Regulations 1988
Made 23th May 1988
Coming into force 20th June 1988
Whereas the Secretary of State is a Minister designated1for the purposes of section 2(2) of the European Communities Act 19722in relation to measures relating to the control of advertising;
And whereas a draft of these Regulations has been approved by a resolution of each House of Parliament pursuant to section 2(2) of and paragraph 2(2) of Schedule 2 to that Act;
Now, therefore, the Secretary of State in exercise of the powers conferred on him by section 2(2) of that Act and of all other powers enabling him in that behalf hereby makes the following Regulations:
Citation and commencement
1. These Regulations may be cited as the Control of Misleading Advertisements Regulations 1988 and shall come into force on 20th June 1988.
Interpretation
2.—(1) In these Regulations—
“advertisement” means any form of representation which is made in connection with a trade, business, craft or profession in order to promote the supply or transfer of goods or services, immovable property, rights or obligations;
“broadcast advertisement” means any advertisement included or proposed to be included in any programme or teletext transmission broadcast by the IBAIBA and includes any advertisement included or proposed to be included in a licensed service by the reception and immediate re-transmission of broadcasts made by the IBAIBA;
“Cable Authority” means the authority mentioned in section 1(1) of the Cable and Broadcasting Act 19843;
“court”, in relation to England and Wales and Northern Ireland, means the High Court, and, in relation to Scotland, the Court of Session;
“Director” means the Director General of Fair Trading;
“IBAIBA” means the Independent Broadcasting Authority mentioned in section 1(1) of the Broadcasting Act 19814;
“licensable service” has the meaning given by Section 2(2) of the Cable and Broadcasting Act 1984;
“licensed service” means a licensable service in respect of which the Cable Authority has granted a licence pursuant to section 4 of the Cable and Broadcasting Act 1984;
“publication” in relation to an advertisement means the dissemination of that advertisement whether to an individual person or a number of persons and whether orally or in writing or in any other way whatsoever, and “publish” shall be construed accordingly.
(2) For the purposes of these Regulations an advertisement is misleading if in any way, including its presentation, it deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and if, by reason of its deceptive nature, it is likely to affect their economic behaviour or, for those reasons, injures or is likely to injure a competitor of the person whose interests the advertisement seeks to promote.
(3) In the application of these Regulations to Scotland for references to an injunction or an interlocutory injunction there shall be substituted references to an interdict or an interim interdict respectively.
Application
3. (l) These Regulations do not apply to—
(a) the following advertisements issued or caused to be issued by or on behalf of an authorised person or appointed representative, that is to say—
(i) investment advertisements; and
(ii) any other advertisements in respect of investment business, except where any such advertisements relate exclusively to any matter in relation to which the authorised person in question is an exempted person; and
(b) advertisements of a description referred to in section 58(1)9d) of the Financial Services Act 19865, except where any such advertisements consist of or any part of the matters referred to in section 58(1)(d)(ii) of that Act as being required or permitted to be published by an approved exchange under Part V of that Act.
(2) In this regulation “appointed representative”, “approved exchange”, “authorised person”, “exempted person”, “investment advertisement” and “investment business” have the same meanings as in the Financial Services Act 1986.
Complaints to the Director
4.—(1) Subject to paragraphs (2) and (3) below, it shall be the duty of the Director to consider any complaint made to him that an advertisement is misleading, unless the complaint appears to the Director to be frivolous or vexatious.
(2) The Director shall not consider any complaint which these Regulations require or would require, leaving aside any question as to the frivolous or vexatious nature of the complaint, the IBAIBA or the Cable Authority to consider.
(3) Before considering any complaint under paragraph (1) above the Director may require the person making the complaint to satisfy him that—
(a)
(a) there have been invoked in relation to the same or substantially the same complaint about the advertisement in question such established means of dealing with such complaints as the Director may consider appropriate, having regard to all the circumstances of the particular case;
(b)
(b) a reasonable opportunity has been allowed for those means to deal with the complaint in question; and
(c)
(c) those means have not dealt with the complaint adequately.
(4) In exercising the powers conferred on him by these Regulations the Director shall have regard to—
(a)
(a) all the interests involved and in particular the public interest; and
(b)
(b) the desirability of encouraging the control, by self-regulatory bodies, of advertisements.
Applications to the Court by the Director
5.—(1) If, having considered a complaint about an advertisement pursuant to regulation 4(1) above, he considers that the advertisement is misleading, the Director may, if he thinks it appropriate to do so, bring proceedings for an injunction (in which proceedings he may also apply for an interlocutory injunction) against any person appearing to him to be concerned or likely to be concerned with the publication of the advertisement.
(2) The Director shall give reasons for his decision to apply or not to apply, as the case may be, for an injunction in relation to any complaint which these Regulations require him to consider.
Functions of the Court
6.—(1) The court on an application by the Director may grant an injunction on such terms as it may think fit but (except where it grants an interlocutory injunction) only if the court is satisfied that the advertisement to which the application relates is misleading. Before granting an injunction the court shall have regard to all the interests involved and in particular the public interest.
(2) An injunction may relate not only to a particular advertisement but to any advertisement in similar terms or likely to convey a similar impression.
(3) In considering an application for an injunction the court may, whether or not on the application of any party to the proceedings, require any person appearing to the court to be responsible for the publication of the advertisement to which the application relates to furnish the court with evidence of the accuracy of any factual claim made in the advertisement. The court shall not make such a requirement unless it appears to the court to be appropriate in the circumstances of the particular case, having regard to the legitimate interests of the person who would be the subject of or affected by the requirement and of any other person concerned with the advertisement.
(4) If such evidence is not furnished to it following a requirement made by it under paragraph (3) above or if it considers such evidence inadequate, the court may decline to consider the factual claim mentioned in that paragraph accurate.
(5) The court shall not refuse to grant an injunction for lack of evidence that—
(a)
(a) the publication of the advertisement in question has given rise to loss or damage to any person; or
(b)
(b) the person responsible for the advertisement intended it to be misleading or failed to exercise proper care to prevent its being misleading.
(6) An injunction may prohibit the publication or the continued or further publication of an advertisement.
Powers of the Director...
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