Recent case law from Portuguese courts addressed the issue of the use of the expression "unlimited" for telecommunications services offerings advertisements, involving the Portuguese Directorate-General of Consumer (hereinafter DGC) and the telecommunications operator MEO – Serviço de Telecomunicações, S.A. (hereinafter MEO).
The beginning of this dispute was a DGC administrative decision which imposed two fines in the amount of € 10.000,00 to the refereed operator, that were latter appealed to the Portuguese Appeal Court by MEO.
The use of the referred expression led DGC to start an administrative procedure against MEO, given that the term "unlimited" in a commercial offering could infringe the principle of truthfulness. In fact, it was considered that the use of the term "unlimited" in an advertising message could mislead the consumer as to the final monthly amount payable for the communication services.
In court, MEO argued that "(...) the expression "unlimited" would always be understood as an "overstatement advertising" or "commercial trick", since it is clear that there would always be limits on the consumption in matter, at the very least because of the time limits (24 hours a day!), which would make them immediately limited, and the use of this advertising technique of exaggeration in order to attract the public's attention to enhance the product qualities do not give it a misleading character, because it is understandable by consumers it is not able to mislead them. "
Following the opinion of the DGC, as advocated in the administrative procedure, the Public Prosecutor argued that the Responsible Use Policy made available by MEO was insufficient to clarify the public regarding the meanings of the term "unlimited", since the remaining information was "visible on separate screens where the consumer would be redirected once selected and tracked different information's (in the initial message) which were inserted in letters of smaller size.".
Having considered the above arguments, the Court concluded that the average consumer confronted with the MEO advertising message would only retain the meaning inherent in the expression "unlimited", since "The way it was disclosed and highlighted, in contrast to the explanatory notes in other links and pages where it was noted that it was not quite the case, it is clear from the appellant's intention to mislead the addressees of the message " and that the conduct of the"( ...) operator was clearly intentional. "
Regarding this matter, ICP-ANACOM, the regulatory authority in Portugal for postal communications and electronic communications, has already voiced its opinion on the issue in earlier decisions, stating that the use of the term "unlimited" should only "(...) qualify the provision of electronic communications services that are effectively available" without limits "or" without restrictions "throughout the contract".
Considering the "unlimited" term is frequently used by telecommunication operators in Portugal for "overstatement advertisings", they will now have to face the challenge of adapting their advertisement offers in a way that does not contend with this decision on misleading advertising.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.