IFTTA
THE INTERNATIONAL FORUM OF TRAVEL AND TOURISM ADVOCATES
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AirlineAdEUIrs

17^th IFTTA Conference

Vienna, Austria

26-31 August 2005

‘LOW FARES! Every seat! Every flight!

Book between … Outbound travel between ... In-bound travel between …

Excludes public and seasonal holidays, sporting events, major concerts. Excludes Tuesdays to Thursdays. Terms and Conditions apply. Subject to availability. Schedules subject to change without notice.  Taxes and charges extra.  On-line booking only. Offer applies only to following ticket classes …

Weekend supplement. Flights via … Flights operated by …’

 –  Misleading Airline Advertising under European Community and Irish Law

Marc Mc Donald

Lecturer in Hospitality and Tourism Law

Dublin Institute of Technology

Dublin, Ireland

marc.mcdonald@dit.ie

Copyright

Introduction

Misleading airline advertising is a continuing concern for consumers[1]. This paper focuses on the legal framework within which airline advertising dealing particularly with ticket pricing and seat availability operates.[2] The paper will

·        note the factors  which have contributed to continuing concern regarding misleading airline advertising

·        highlight some difficulties inherent in taking a traditional legal approach to combating misleading airline advertising

·        briefly survey existing European Community and Irish  law dealing with misleading advertising

·        note the role of self-regulation in combating misleading airline advertising and highlight (through examples[3]) ways in which airline advertising has been deemed misleading, and finally

·        consider future legal options regarding how to better combat misleading airline advertising.

Causes of Continuing Concern

When the liberalisation of air passenger transport within the European Community was under consideration in the 1980s and early 1990’s much thought was given, among other things, to consumer benefits in terms of increased competition, lower airfares and greater choice. However, little or no thought appears to have been given to consumer disadvantage – the use of misleading advertising by airlines[4], initially by new entrants and later in response by existing operators, forced to compete more aggressively in the newly liberated air passenger market.

Since liberalisation in 1992 other dimensions of airline activity impacting on consumers have been subject to specific post-liberalisation Community legislation[5], but no law has been enacted by the European Community specifically aimed at protecting consumers against the use of misleading advertising by airlines.

However, the problem of misleading advertising has not been ignored. There was a general Community framework already in place in 1992 banning misleading advertising but only in the widest terms - Directive 84/450[6] as amended. This measure pre-dated airline liberalisation by 8 years and does not appear to have been enacted even partly with a view to the advertising consequences of air passenger liberalisation. Directive 84/450 will after 25 years be largely replaced by recently enacted Directive 2005/29 on unfair business-to-consumer commercial practices[7] (unfair commercial practices) which, as will be seen, will when it comes into force significantly alter the framework within which airline advertising is conducted. However Directive 2005/29 is again a general measure which reflects wider concerns about unfair commercial practices of which misleading advertising is but one.

In the US, the link between deregulation and controlling misleading airline advertising was seen at an earlier stage. The US federal legislation which deregulated passenger air transport – the Airline Deregulation Act 1978 – was drafted in sufficiently wide terms[8] that the US Supreme Court was able to decide in 1992[9] that state laws which tried to stop deceptive airline advertising were ousted by the federal ban[10] and only the federal authorities can act in this area. In the European Community in the absence of a specific measure the issue was largely left to the member states, few of whom, as will be seen, enacted any specific legislation.

Besides liberalization another force within the European Community also worked towards the increased use of misleading advertising by airlines. From the early 1990’s the introduction of new airline technologies around the use of direct booking though Internet websites added to the ease with which misleading advertising could affect consumers. These technologies provided airlines with the communication tools to market and yield manage seat demand and fares in ways that conferred an extraordinary and unparalleled agility to vary price offerings. The technologies also enabled airlines to fine-tune their price offerings with impressive finesse. To arrive at the exceptional airfare an airline now had the ability to hedge it about with a great yet manageable number of availability restrictions [11]. The outcome for some time now has been that airlines are able to charge widely different prices for the same service on the same flight and can justify this apparent unfairness by claiming that each fare represents a different product rather than a different time of booking. Indeed, the benefits of yield management applied to airfares – the occasional or defined spectacularly low fare - have softened criticism of the practice and stifled demands for limits on the numbest restrictions affecting the availability of an airfare in order to curb the excesses of yield management.

The interaction of both factors – the heightened competitive environment post-liberalisation and the use of instant technologies permitting multiple and variable price offerings by airlines – have nonetheless contributed to rising public concern about misleading advertising by airlines.

The types of airline advertising which cause consumer concern are related to the nature of the airline service offered. Broadly speaking, airline advertising varies depending on whether the flight advertised is short or long haul. Short haul advertising tends to raise three main issues – ticket pricing, sufficient seat availability and date restrictions, while long haul advertising can raise these and other issues relating to earning of bonus points[12], and sometimes quality of service, especially in business class[13]. The inside of an airplane is fairly standard and does not usually figure in airline advertising[14]. 

Of the three concerns mainly with short haul advertising, the principal concern with advertising ticket prices lies in not revealing all of the additional compulsory charges which a consumer may have to pay in order to complete the flight. The principal concern with advertising seat availability is the failure to make available sufficient capacity to meet the anticipated demand. With date restrictions the concern lies in not making restrictions clear enough to consumers.

Advertising, say, by tour operators’ is different from airline advertising and raises more quality issues since consumers are more dependant on supplier information via advertising because of lack of industry standardization and lack of consumer knowledge of the hotel or resort. Equally, subsequent price or availability changes - common enough consumer complaints with tour operators - do not apply so much to airlines advertising because yield management and technology allows airlines to instantly withdraw one offering and replace it with another whenever its necessary to reflect any altered circumstance. Tour operators cannot do this with the same alacrity because printed brochures, once beyond their control, do not allow altered circumstance to be so easily accommodated.

Difficulties with Traditional Approach to combating Misleading Advertising

Writing a law banning misleading advertising (by whatever means - civil, criminal, administrative, preventative, reactionary) is easy enough, but applying it in a way which produces useful results is not. The difficulties stem from what is involved in misleading consumers. 

An airline generally does not want to tell a lie or make a clearly false statement about a low price. But it also knows that consumers are most attracted by advertisements offering low prices which an airline cannot offer all the time. So the airline uses a headline advertising a low price and in smaller print restricts its availability in ways which might or might not enable the consumer to understand the restrictions. This is the strategy of deliberately mixed signals. But, depending on how the advertisement is drafted and understood by recipients the mixed signals risk veering over into being contradictory or confusing or worse. The subsidiary signal will always be given lesser prominence and less attentive recipients may often see no difference between mixed and misleading signals. This is where the question of whose understanding counts in legal proceedings becomes crucial.

Should the law allow individual or group evidence of actual reaction? Should it invent a notional average consumer? Who might that person be? And wouldn’t it really be a judge in disguise? And if it is, how would that judge learn or re-learn how to read things like an average person?

Even with clarity on the theory, applying it and actually figuring out the consumer’s reaction can still be hard. Because reasonable people can and do disagree on their reactions to advertisements. And advertisers known this and naturally exploit it. The more craftily laid the advertisement the harder it is to say whether the subsidiary contradictory signal is spotted and understood. It is hardly surprising if occasionally adjudicators avoid complexity and decide the question, not according to consume reaction but according to trade practice.[15]

Four features therefore – the attraction of mixed signals for advertisers, the distinction between a lie and a failure to provide enough information, the fact that the distinction lies initially within the advertisers control and he/she can play with its limits and the problematic nature of deciding whose reaction counts– explain why misleading advertising is such a highly convenient communication tool for advertisers and such a difficult thing to effectively legislate against.

In some cases the difficulty is added to because the effect of advertising can even depend on external factors, that is, not on the juxtaposition of information within an advertisement, but on factors independent of it, though not of the advertiser. This concerns sufficient seat availability. Whether a headline offering a low fare is misleading can depend on whether the airline makes enough seats available for the demand. This is only something which becomes known to consumers if a complaint is made and the airline releases the information to defend itself. Until then a consumer may believe that not enough seats were made available but the airline can happily continue advertising in this way because most consumers will not complain about something that they cannot clearly see  or know is wrong.

All these difficulties mean that to successfully prosecute a misleading advertisement to the criminal standard of proof beyond reasonable doubt is problematic. Prosecutors rely initially on cooperation and then focus only on the more blatant examples of misleading advertisement (where dispute about the reaction of the average consumer is unlikely) and ignore the greater volume of misleading advertisements where the advertiser was crafty enough to include the mixed signals in a way which ‘reasonable’ people disagree. This tendency to focus on the minority of bad/blatant cases is reinforced by the natural desire of consumer enforcement bodies to only bring successful prosecutions. Unsuccessful ones undermine the standing of such bodies.

Against this backdrop it is not surprising that there are few enough legal proceedings dealing with misleading airline advertising[16]. Nor is it surprising that the principal mechanism relied on for combating misleading advertising is industry self-regulation.

Current Laws on Misleading Advertising

European Community law

Community law on misleading advertising is facing into a period of transition. Currently, the law is contained in Directive 84/450. However, this Directive will be radically refocused when the recently enacted Directive 2005/29 on unfair commercial practices (and its national transpositions) enter into force by mid and end-2007 respectively. The new Directive removes misleading advertising from Directive 84/510 and restates its provisions in substantially greater detail with some provisions specifically addressing the issues under discussion in this article. The reason for this new approach is that the new Directive represents an attempt to provide a single general approach to the entirety of the problem of unfair commercial practices, of which misleading advertising is but one aspect, but with of necessity or choice some specific provisions. 

In outlining current Community law dealing with misleading advertising it is convenient to take account of both Directive 84/450 and Directive 2005/29. However, it seems doubtful whether either set of provisions adequately addresses the specific problems of misleading airline advertising under discussion. This is because, as will be seen, both laws focus on banning what is misleading/unfair, though the later Directive blurs the distinction some what by stipulating the information that would prevent something being misleading, without actually prescriptively requiring its display.

The 1984 Directive represents a minimalist approach. It merely declares the ban and sets out the framework for deciding if an advertisement is misleading. It does not focus on any specific type of advertising.

Article 4 of Directive 84/450 states

‘Member States shall ensure the adequate and effective means exist to combat misleading advertising … in the interests of consumers as well as competitors and the general public.’ [17]

Misleading advertising is defined in Article 2 (1) as

‘any advertising which in any way, including its presentation, deceives or is likely to deceive the person to whom it is addressed or to whom it reaches and which by reason of its deceptive nature, is likely to affect their economic behaviour or which, for this reasons, injures or is likely to injure a competitor.’

The Directive also sets out how misleading is to be judged. In Article 3 it states:

‘In determining whether advertising is misleading, account shall be taken of all its features, and in particular of any information it contains concerning … the characteristics of the … services, such as their availability … the price or the manner in which the price is calculated and the conditions under which  … the service is provided …’

The remaining parts of the Directive require member states permit court actions to be brought by parties outside the traditional legal approach and are of no further interest for present purposes.

In looking at the comparable provisions of Directive 2005/29 one notes firstly the general ban in Article 5 of the later measure is cast in wider terms – ‘Unfair commercial practices shall be prohibited.’ This is deemed to include in Article 5 (4) the following ‘ In particular, commercial practices shall be unfair which … are misleading as set out in Article 6 and 7 …’ Secondly, within these provisions only those parts which deal with an ‘invitation to purchase’ which approximates to most advertisements are of current interest. An advertisement which does not enable the identification of an individual product, its characteristics and price is not an invitation to purchase – Article 2 (i). Sometimes low fare airlines use such advertisements by merely referring to a seat sale but neither destination nor price can be exactly identified.

Even without Articles 6 and 7, another provision, Article 5 (5), provides a list of practices listed in Annex I to the Directive that ‘shall in all circumstances be regarded as unfair.’

Among the practices on the blacklist of relevance to airline advertising which offer low fares and fail to provide enough seats to satisfy anticipated demand is Point 5:

‘Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply …  those products … at that price for a period that is, and in quantities that are, reasonable having  regard to the product, the scale of advertising of the product and the price offered (bait advertising).’

Looking at Articles 6 and 7 to see how they define what  is misleading, it can be said for present purposes that these contain more general and distinct statements of the core elements in Point 5 above. Article 6 focuses on misleading actions and Article 7 focuses on misleading omissions. Leaving aside untruthful statements, Article 6 (1) identifies the more typical form of  misleading statement:

‘A commercial practice shall be regarded as misleading if … in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to

take a transactional decision that he would not have taken otherwise …

b) the main characteristics of the product, such as its availability …

d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;’

Article 7 (1) and (2) state:

‘A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision and thereby causes or is likely to cause the average consumer to take a transactional decision that he would not have taken

otherwise.

2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph … and where … this causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.’

Article 7 (4) somewhat shortly lists the material information that should not be omitted from an advertisement. It includes ‘the main characteristics of the product, to an extent appropriate to the medium, and product [and] the price inclusive of taxes …’

Thus, by imposing an indirect disclosure requirement Article 7 is potentially the more significant provision. To avoid misleading by omission certain defined information about a product must be included in the advertisement. The list of ‘main characteristics’ in Article 6 (1) (b) obviously helps identify what should not be omitted from an advertisement under Article 7 (4). Thus, in addition to price, availability and more specifically date and even number of seat restrictions which are clearly ‘main characteristics’ should be disclosed .

Under both Directive 84/450 and Directive 2005/29 a key element in the definition of ‘misleading’ is the deceiving, although the term is not used in the above quoted parts of Point 5 from Annex I[18] or in Article 7[19]. It is submitted that little importance attaches to this. Deceiving is not used in its traditional English sense of connoting also the state of mind of having intent to deceive[20]. Both Directives make clear that it need only be the advertising which deceives, not the mind of whoever issues it.

This feature gives the both the present and future EC bans a wide range. Once the maker’s state of mind is irrelevant a greater number of advertisements  are subject to the ban[21].

Whose understanding counts?

Both Directives are similar in using the same criterion for deciding whether an advertisement is misleading. The Court of Justice[22] stated in relation to the current law in Directive 84/450 when referring to previous cases.

‘In those cases, in order to determine whether the description … or promotional description or statement in question was liable to mislead the purchaser, the Court took into account the presumed expectations of an average consumer who is reasonably well-informed and reasonably observant and circumspect, without ordering an expert’s report or commissioning a consumer expectation poll.’

However, the Court also allowed the possibility that if a national court had ‘a particular difficulty in assessing the misleading nature of the statement’ it could rely on a research poll or expert report to help it decide the matter[23].

In the new Directive (Articles 5,6,7) the words used are ‘average consumer’ which may seem equivocal. However, in making specific provision in Article 5 (3) for how to determine whether an advertisement is misleading for ‘a clearly identifiable group of consumers who are particularly vulnerable … because of their …. credulity’ it seems obvious enough the views of the Court just outlined are likely to represent the position also under the new Directive. And just to ensure not too much credence is paid even to the credulous, the last sentence of Article 5 (3) states:

‘This is without prejudice to the common and legitimate advertising practice of making exaggerated statements or statements which are not meant to be taken literally.’

Thus, in theory at any rate, Community law clearly answers the question posed earlier as to whose reaction counts in deciding if an advertisement is misleading in favour of the careful consumer who will usually be a judge.[24]

An important consequence of the average consumer test in both Directives is that to narrow the scope of the ban and offer greater latitude to advertisers. It means the reactions of hasty readers can be ignored. And as regards price or availability advertising by airlines it leaves little doubt that where smaller print and asterisks are used and carefully written so as to limit the availability of an offer, the average consumer will be expected not just to notice and read the small print and asterisks, but will also reflect on their significance - although the print of the footnotes must still be large enough in relation to the advertisement.[25]

This Community law position on whose reaction legally counts may also in theory mean that greater use may be made of contradictory or confusing advertising by airlines. For example, it can sometimes happen that the main claim in an advertisement is contradicted by the small print. The careful consumer may feel irritated by it, but will not be misled by it. Community law will still expect him/her to see what the advertiser was trying and failed to do.

Take two examples from Code adjudications. In one UK ASA case[26] a press advertisement for flights from Stanstead was found misleading. It showed a signpost with five cities including Vienna written on it. However, the small print indicated a flight to Bratislava and a bus connection to Vienna. In another case[27] of a misleading advertisement the quoted price was for ‘New Zealand. Fourteen nights from …’ while the small print stated ‘excludes international flights’.

Using the test of the average consumer it is unlikely that either advertisement would be misleading under either Directive. But then one wonders whether the words of Article 7 (2) of Directive 2005/29 might force a departure from the focus on the careful reader. In referring to the elements of a misleading omission Article 7 (2) includes where an advertisement ‘hides or provides in an unclear, unintelligible, ambiguous or untimely manner … material information …’ If this was applied to the two cases above whose reaction would be relied on in deciding if the two advertisements infringed Article 7 – the hasty or careful reader? And what would have been the outcome?

A final point about the apparent strictness of Community law in relying on the careful reaction of the average consumer. Theory and its application can be two different things. The test of understanding still has to be applied and it could easily happen that although correctly identified, the test could be applied in a way that really the reaction of the hasty reader is used instead of the reaction of the careful one. The average consumer might still be held not to have spotted or appreciated the significance of any limits on the offer.

Neither the 1984 nor the 2005 Directives  deal with offensive advertising by airlines, except in so far as they are also misleading or unfair.[28]

Irish law

Member states have been obliged since 1.10.1986 to transpose Directive 84/450 and have until end-2007 to bring transpositions of Directive 2005/29 into force. Given the fairly imminent need to transpose the wider 2005 Directive it may seem otiose to go into detail on how, or to what extent, Ireland has properly transposed the 1984 Directive. However, there have been interesting developments in Ireland which may hold larger lessons for a more focused Community approach to misleading advertising by airlines regarding ticket pricing and seat availability.

The Irish transposition of Directive 84/450 (by delegated legislation[29]) did not enact new substantive criminal law prohibitions on misleading advertising. It focused only on permitting the taking of legal proceedings of a non–criminal nature to prevent misleading advertising. On its own this would not perhaps have amounted to a full compliance with the requirement in Article 4 of the Directive for member states to ‘ensure adequate and effective means exist to combat misleading advertising.’ But Ireland also had pre-existing criminal law sanctions against misleading advertising and presumably assumed these satisfied Article 4.

The Irish Consume Information Act of 1978 contains two misleading offences (where the state of mind of the maker is irrelevant). One (s.7) deals with false or misleading indications about prices and the other (s.8) deals with misleading advertisements. Both differ. The prices offence is wider. It only requires proof of the giving of a misleading indication of the price or charge for the offence to be committed. There is no need to show any loss or injury resulting from the advertisement[30], while the misleading advertising offence does require that the advertisement is shown to be likely to mislead and must additionally by virtue of its misleading likelihood ‘cause loss, damage or injury to members of the public to a material degree.’[31]

It is not clear whether requiring that the misleading be likely to cause loss to a material degree corresponds to the 1984 Directive’s requirement in Article 2 (1) that the misleading advertisement ‘is likely to affect their economic behaviour …’ or to the requirement in Articles 6 and 7 of the 2005 Directive that the advertisement cause or be likely to cause ‘him to take a transactional decision that he would not have taken otherwise.’ It seems reasonably clear the s. 8 requirements does not correspond to the blacklist of advertising practices listed in Annex 1 of the 2005 Directive because that does require any likelihood of loss to be established. The following example illustrates the point.

An airline advertises in the press a low fare obtainable only through an Internet booking. When the consumer tries to book through the site he/she finds the fare is no longer available and is offered a higher fare. If the consumer decides not to make a booking at all it seems clear they have satisfied the Article 2 requirement, their economic behaviour was affected in that they tried to make a booking at that site and failed. It is unclear whether Article 6 or 7 have been infringed because what causes the transactional decision by the consumer (the decision not to buy the product at the advertised price) is not what is left in or out of the advertisement, but the fact that the low price no longer applies. However, Point 5 of Annex 1 has been infringed because there was probably an insufficient supply of seats by the airline and there is no requirement to show any harm or impact on transactional decision. The harm requirement in s.8 of the 1978 Act may have to be modified.

Both misleading offences under Irish law are subject to a defence of taking reasonable care and due diligence (s. 22, 1978 Act) to avoid the mistake or the reliance of information supplied by others. This leaves open the possibility that the defence can be made out and no sanction incurred although the advertisement was misleading. If this was the only Irish attempt to transpose the obligation in Article 4 of Directive 84/450 it might be that the Irish transposition is inadequate.

But the Irish lawmaker has done more and in doing so was specifically prompted by doubts about the effectiveness of controlling airline advertising of prices and seat availability by sanctions such as those mentioned above. It appears to have concluded that these criminal sanctions on their own were inadequate.

In 2000 it enacted the Consumer Information (Advertisements for Airfares) Order.[32] This prescribes by law the information that must be revealed in all airfare advertisements and makes non-compliance a criminal offence. This law reflects quite a different approach to the problem of misleading airline advertising. It involves moving from a general criminal ban to listing the information that must be contained in every airfares advertisement. Ireland appears to be the first and so far only European Community state to prescriptively address problems of misleading airline advertising and to do so in a way which is unconnected with package travel.[33]  This innovation was probably forced on the Irish authorities because Ireland was the home of one of the first, largest and most commercially aggressive low fares airlines.

The basic disclosure obligation is set out in Article 4 (1) of the 2000 Order.

‘In every advertisement for an airfare … the total price payable for the airfare by the purchaser shall be clearly stated as one single amount.’

The words ‘the total price of the airfare payable by the purchaser of the airfare’ include

‘all charges payable … other than any charges imposed in respect of the method of payment’ – Article 3.

Charge in turn is defined as including ‘a fee or a tax by whatever source imposed or levied.’ – Article 3

Thus, an advertised airfare must include everything the consumer has to pay, even charges not imposed by the airline which it collects on behalf of others, but excluding prices for credit card payment.

Restrictions on the availability of an airfare must also be specified. Under Article 6 (1) of the 2000 order any restrictions on the availability of an airfare in a written advertisement must be ‘clearly specified in the advertisement’, though not necessarily with the same prominence. ‘Written’ is given a wide meaning to include ‘electronic modes of representation … in visible form’ and so includes Internet and email advertising. The Order spells out the types of restrictions which must be disclosed in the advertisement. Article 3 states:

‘restrictions’ includes, in relation to the availability of an airfare, restrictions on –

(a)    flight times;

(b)    the number of seats or the percentage of total aircraft capacity on specific routes;

(c)    specific days of the week or months of the year;

(d)    specific airports in relation to arrival or departure;

(e)    specific sources or method of booking; and

(f)      method of payment’

The meaning of the word ‘specific days’ seems significant. Presumably it means the actual days when a fare is not available. But much airline adverting does not state the days the offer is not available. Rather it states the offer does not apply during major sporting events or holiday periods without naming dates or days. Is this advertising prohibited by the 2000 Order because these are non-specific day restrictions?

The other noteworthy point in the 2000 Order about restrictions is that no limit is applied on the number of restrictions that can be used with a low fares offer. This means that the yield manager has unfettered freedom to fine tune and pin-point the operation of a low fare offer. Whether this actually increases the risk of misleading consumers about the availability of such offers because of the range and/or number of restrictions is unlimited was obviously not a concern of he Irish lawmaker. Whether it should have been will be returned to later.

This is little doubt that the 2000 Order is a welcome innovation and represents a potentially effective and attractive alternative approach to dealing with misleading airline advertising. It catches all advertisements, press, broadcast and web based. It applies to price, date and other restrictions, although it does not apply to ensuring sufficient availability except indirectly.[34] It removes the difficulty of determining whether a consumer was/was likely to be misled and replaces it with the evidentially simpler task of seeing if the required information was present or not. It is much easier to prosecute for failing to display required information than to prosecute for misleading consumers[35]; and although the defence of reasonable care and due diligence also applies to prosecutions for breach of the 2000 Order, it is less likely to be used when failing to display stipulated information.

For the short period it worked this law well served consumers. Then a loophole was discovered.[36]  The enabling provision[37] only allowed the advertising intermediary to be prosecuted, not the advertiser, the airline. Not surprisingly old advertising practices returned and will remain until the gap is plugged.

Self-Regulation and Misleading Airline Advertising

In the absence of effective criminal laws and in some cases diminished political support[38], industry self-regulation via codes of conduct plays a significant role in combating misleading airline advertising. Preamble 20 to Directive 2005/29 states:

‘It is appropriate to provide for codes of conduct, which enable traders to apply the principles of this Directive effectively in specific economic fields.’

It is not ideal, however, that self-regulation should supplant legal sanctions, although there is some debate on the relative merits of each approach.[39] However, Article 10 of the Directive reflects the preponderant view that the use of codes and their adjudication bodies should not be used as a substitute for legal proceedings in furtherance of the Directive’s provisions. It states:

‘Recourse to such control bodies shall never be deemed the equivalent of foregoing a means of judicial or administrative recourse [as required by this Directive].’

Thus member states cannot use self-regulation alone. Despite this self-regulation is in effect and at present in Ireland a substitute for the use of legal sanctions and provides the greatest source of information about complaints regarding misleading airline advertising.

The Advertising Standards Authority of Ireland[40] is, like its UK counterpart[41], a private advertising industry self regulation body which operates a Code of Advertising Standards based on the International Chambers of Commerce International Code of Advertising Practice[42] and local experience of acceptable behaviour in relation to advertising. Members of the public and industry competitors can lodge complaints about advertisements and the Authority’s complaints panel adjudicates and gives decisions. The main sanction is that the advertisement must be withdrawn or changed either immediately or within a defined period. Damage to reputation can follow from publication of an adverse decision or even exclusion from a trade association.[43] Overall the imperative to obey the Authority’s rulings is primarily moral.

The Authority is certainly effective in its ability to attract complaints from airline consumers and competitors about advertising, but its effectiveness is hampered by certain weaknesses inherent in the self-regulation approach. This will be returned to later.

The parts of the Irish Code dealing with the types of misleading advertising under consideration (which are wider in scope that the criminal law on advertising - see below) state[44]:

‘ 2.22   An advertisement should not mislead by inaccuracy, ambiguity, exaggeration, omission or otherwise.   [Clause 7.1]

2.23     Claims such as 'Up to' and 'from' should not exaggerate the value or the range of benefits likely to be achieved in practice by consumers … [Clause 15.4]

2.39          Except on advertisements addressed exclusively to the trade, prices quoted should normally include VAT and other taxes, duties or inescapable costs to the consumer. Where applicable, the amounts of any other charges such as those arising from the method of purchase or payment should be stated ...    [Clause 15.2]

2.41     An offer should be described as free only if consumers pay no more than:

-         the current public rate of postage;

-         the actual cost of freight or delivery;

-         the cost, including incidental expenses, of any travel involved if consumers collect the offer ...   [Clause 32.1]

2.44   Where there is limited availability on some or all of the products advertised, apart from indicating that there may be other terms and conditions which apply, advertisers

a.     should not exaggerate the availability of any of those products;

b.     should be able to demonstrate that there is a reasonable supply or proportion of each of the various products available.’   [Clause 16.1, 30.1/2]

Drawing together these diverse rules the consistent feature of misleading advertising is the presentation of information in a way which deprives the consumer of other information likely to affect the decision to take up the advertised product. How information is presented and how the consumer is either deprived of relevant information or, what amounts to the same thing, how the relevant information is not presented with sufficient prominence, can vary widely. Examples of the types of misleading airline advertising relevant to the present enquiry can be looked at under three headings – misleading pricing, sufficient availability and date restrictions.

Misleading Pricing

Besides a general claim to offering the ‘lowest fares’ which must be true in every case not to be misleading[45], airlines engage in misleading price adverting in two main ways – omitting necessary information from the low fare advertised and describing an offer as free when it is not. In a number of cases the Irish/UK ASA held that advertising an airfare without including payable taxes[46] or fuel surcharges[47] although flagging the fact that the additional charges would be payable, was misleading. Mentioning a booking fee as separate from the ticket price was not misleading since it related only to the method of booking and while it should be mentioned, it does not have to be included in the ticket price.[48]

Some airlines advertised flight prices as one way or each way when in fact the prices were only available if a return ticket was bought. In one case[49] an email quoted ticket prices from x pounds ‘each way’ while the website made clear the prices were only available on a return basis. The UK ASA stated ‘most people would infer from the email that one-way tickets were available for the advertised prices.’  Even including a footnote which stated that the each way price was only available by buying a return ticket did not ensure conformity with the Code because the advertisement was contradictory.[50]

Describing an offer as free  - ‘For 24 hours only we are offering free flights everyday on selected routes from the UK – you only pay the taxes.’ - was also held[51] to be in breach of the Code both because of the misuse of the word ‘free’ and because the total price payable by the consumer was not stated. The Irish ASA stated:

‘The rule in paragraph 2.41 is intended to essentially limit the description ‘free’ to an offer to those cases where there is no charge to the consumer. The paragraph lists certain costs of an incidental nature which can arise while still allowing the use of the word ‘free’ but the taxes and airport charges arising from air travel do not fit within the categories mentioned nor are they considered analogous to them. In these circumstances it is not considered that the use of the word ‘free’ is appropriate in the circumstances of the advertisement.’

In relation to paragraph 2.39 of the Code, the ASA continued:

‘its purpose is to ensure that the advertisement informs the consumer of the costs of other taxes, duties or inescapable costs that arise in the purchase of the advertised goods or service and requires that they be presented to the consumer as a total price. The advertisement in question did not give, either separately or together, the costs of the taxes, duties or inescapable costs arising for a consumer in availing of the Ryanair offer.’

Offering a free companion ticket ‘for any Club World, Concorde or First return business flight’ booked was misleading because it failed to indicate that the offer only applied to a limited category of business flights.[52] Advertising a very low long haul fare when the terms and conditions indicate it is subject to a prize draw is also misleading[53]. ‘Giveaway’ can in some cases mean the same as free.[54]

While on-line booking is now widely used, if an advertisement fails to make clear that the low fare is only available through on-line booking it could be regarded as misleading by the Codes.[55]

Sufficient Availability

Many complaints about airline advertising relate to insufficient availability of seats at the advertised low fare. The Code as indicated above requires the advertiser make a reasonable estimate of likely demand and ensure a supply adequate for that demand. Whether this is done by the airline will only emerge if a complaint is made and the airline responds with supporting documentary evidence.[56] Since a consumer has no way of independently knowing if sufficient seats were made available and may assume they were not and complain anyway, it could be that there is a higher rate of unsuccessful consumer complaints about sufficient availability than other forms of misleading advertising.[57]

The key requirement from an advertiser’s viewpoint lies in estimating demand based on past experience which should not be too difficult. But where the route offering is a complex one, involving fares to a hub airport and connecting long haul flights to a wide variety of destinations, estimating demand for any one combination can be difficult. If sufficient warning is placed in the advertisement about limited capacity and consumers are urged to be flexible about travel dates, the airline may be able to show reasonable estimate of demand even with a low allocation of seats.[58]

Airlines use different channels for different offers and a consumer must ensure the right channel is used when trying to avail of a low fare. In one case[59] the offer was only available through the email members web page and the airline demonstrated sufficient availability. When the consumer was unable to get the low fare, the inference seemed to be they might have tried to get it through the ordinary web site.

Date Restrictions

Crucial to low fares is time precision and flexibility regarding when the low fare is available and this necessarily involves date restrictions, both booking and especially travel. Being conscious of how consumers can be mislead regarding date availability airlines try to protect themselves against complaints by warnings in advertisements, such as ‘There is no guarantee that you will be able to purchase tickets on your selected flight …. Certain flights may have very limited or no availability on certain dates.’ or ‘ Excludes school holidays, major sporting events and bank holidays.'

How well such statements work in ensuring an advertisement is not misleading under the Codes depends on the severity of the restrictions they flag and how much influence they would have over a consumer’s decision. They can effectively protect an airline where the restrictions are not severe. But if the effect of such exclusionary warnings is that the low fare is more or less never available on certain weekdays likely to be of interest to consumers, it may well be misleading (and this despite the airline claming it cannot mention every restriction in some advertisements) because this ‘condition was a significant factor likely to influence consumers decisions or understanding about the promotion and that it would have been possible so to word the terms and conditions to make that position clear.’[60] Although a phrase like 'major sporting events’ seems vague, the reasonable reader will probably understand it to cover actual and possible events both at places of departure and arrival. A possible event is one which depends on an initial event, such as a soccer match which will only happen if a team qualifies for the next round[61]. Whether such phrases comply with the Irish 2000 Order is another matter and depends on the interpretation of the word ‘specific’ as mentioned above.

There is always a risk that a restriction, unless carefully worded and positioned, will contradict and confuse rather than clarify. In one case[62] a low fare was advertised as being available for ‘Every seat on every flight’ but the small print warned that a weekend supplement applied. Without an asterisk to specifically link the larger claim to the weekend supplement restriction, the UK ASA considered the advertisement contradictory and, worse, misleading when it emerged the airline used weekend to include flights between Thursday and Tuesday. In another case[63] a similar claim was made subject to ‘terms and conditions’ which did not make explicit that the low fares offer did not apply to flights on certain weekdays.

There might be some advertising leeway for airlines regarding the detail of date restrictions when advertising a large number of destinations in a single press advertisement. It might not be misleading not to identify individual days on which flights to one of over 30 destinations are not available.[64]

The relative success of self-regulation versus court proceedings merits some comments. There is little doubt the informality of self-regulation proceedings counts for a lot. The absence of a hearing and expense also help.  But the weaknesses of a self-regulation system are also obvious. The limited desk research undertaken for this paper indicates a number of specific weaknesses in the self-regulation approach regarding airline advertising. These are:

·       airline delay in responding to notified complaints

·        airline refusal to accept that email communication amount to advertising and lie within self-regulators remit

·        repeated breaches of code by airlines

·        exploitative use of code complaints system by airlines.

Research elsewhere suggests that only better educated people use this procedure.[65]  Self-regulation is especially ineffective in a highly competitive environment where it takes only competitor to be indifferent to it for others to follow suit.  Self-regulation is especially ineffective in a highly competitive environment where it takes only competitor to be indifferent to it for others to follow suit.

The Future

Deciding how to transpose Directive 2005/29 into national law will present an opportunity to take an overall look at how misleading advertising both generally and sectorally should best be combated.  The more likely approach will be to transpose the Directive in its entirety. One key issue will be whether it will be possible to continue to provide a defence of reasonable care and due diligence to prosecutions for misleading advertising and still comply with the obligation in Article 19 of the Directive to adopt ‘the provisions necessary to comply with this Directive.’ But the really key question for present purposes concerns what scope will remain for sectoral specific prescriptive national laws, such as the Irish Airfares Order 2000, or indeed for their continuing development.

Directive 2005/29 is a ‘full’ harmonization measure. Article 1 says its purpose is to approximate member states laws on unfair commercial practices. Overall the text, preamble and Annex I of the Directive make it clear that a high level of uniformity is to be achieved so as to improve the functioning of the internal market and cross border transactions. However, legal uncertainty over whether this would allow member states maintain or create more stringent protections[66] has been avoided by a revealing passage in Preamble 14 which offers some scope for prescriptive national approaches.

‘In respect of omissions, this Directive sets out a limited number of key

items of information which the consumer needs to make an informed transactional decision. Such information will not have to be disclosed in all advertisements, but only where the trader makes an invitation to purchase …  The full harmonization approach adopted in this Directive does not preclude the Member States from specifying in national law the main characteristics of particular products … the omission of which would be material when an invitation to purchase is made.’ (emphasis added)

Thus, it would seem that there is still scope for prescriptive national rules, like the Irish Airfares Order 2000, especially when its contents can be seen as merely a specific and positive expression of sentiment contained in Point 5 of Annex I and Articles 6 and 7 of the Directive and also when it is limited  to prescribing the ‘main characteristics’ of a product to be displayed in the advertisement.[67]

But the real issue is how the positive approach contained in the 2000 Order can be built on at both national and Community level.

Disclosing the number of available seats

The Irish 2000 Order requires compulsory disclosure for just two of the types of misleading airline advertising under consideration in this article – misleading pricing and date restrictions. The 2000 Order does not address insufficient availability, except where there are specific seat restrictions. Nor could it easily address insufficient availability directly because the provision under which the 2000 0rder was made (s. 11 of the Consumer Information Act 1978) only allows the stipulation of information that must be contained in an advertisement, not the requirement that there be sufficient availability.

However, what the 2000 Order could easily accommodate is a stipulation that the number of seats available for a web based offer must be displayed in any advertisement. In other words the 2000 order could be amended to require:

the compulsory disclosure of information about the real availability of an airfare by requiring electronic offerings of prices to display with the same prominence as the price, the number of initial and remaining seats available at that rate.

The merit of this idea is that it is simple and direct. It would allow the consumer to instantly see exactly how many seats are left at that price. It is true this is not quite the same as ensuring sufficient availability but it more precisely addresses the major cause of complaint  that consumers do not know how many seats are left when they try to access a particular fare. Since the consumer will see how many seats are left at that price, the suggestion would remove a major consumer complaint that consumers can never tell if the airline has made sufficient capacity available to meet demand.

Indeed, a refinement of this suggestion could also have merit. The law could be changed to stipulate that when an offering is withdrawn by an airline that the number of seat sold under that offering be disclosed. That way the consumer could see how hard or easy the offering might have been to obtain and will increase consumer ability to counteract the exploitative use yield management by airlines. In some ways the debate is really about the use of such techniques and the law playing catch-up on commercial reality. Without wishing to enter that particular debate, many would argue there is something repugnant, except in the case of last minute reservations, about the idea that differing passengers on the same flight receive the same service, yet pay widely different fares. Airline arguments that they are selling different products rather than the same service do not seem convincing.

While an offer is still open compelling airlines to disclose the number of seats remaining at any given price would also not interfere with airline pricing freedom because an airline would still be free to set its prices as it wished. It would still allow airlines extract maximum advantage from yield management techniques. Prices could still be varied as often as the airline wished and prices could be advertised for as long or as short as the airline liked.

Instant control over website information would permit all this. The obligation to disclose the number of remaining seats would also have to apply to intermediary offerings of airline seats. It appears arrangements can be made between airlines and intermediaries to ensure instant intermediary access to price and seat number changes.

The rule could not be applied to non-electronic advertising since it would not be possible to ensure up-to-the-minute data on numbers of remaining seats. But this is not a significant point and would not disadvantage electronic advertising versus press advertising since the latter nowadays invariably seeks to encourage on-line booking. The normal prohibition on misleading advertising should on its own be enough.

What could additionally be required in press advertisements in order to improve consumer ability to see how many seats are left is information about the duration of the offer, if that’s known, such as when it started, how long it is expected to last and that rate of take-up of the offer on an average daily basis based on past experience, or if there is no such experience, on a best guess basis.

Restricting the number of restrictions

Another area where airfare advertisements could be made less likely to cause consumer difficulty involves limiting the number of restrictions attaching to an airfare offer. Building restrictions into the availability of airfares offer is an essential part of the yield management of airfares. The more focused the restrictions the better the potential yield. But a large number of restrictions can be difficult for some consumers to deal with without feeling mislead. Under Community law there is in theory no limit on the number of restrictions that can be placed on an airfare offer since the ‘average consumer’ can be expected to read and mull over all stated restrictions. But Irish law, as was seen earlier, does go further and already requires that all restrictions are ‘clearly specified’ in the advertisement. The question is should the law go further and try to make it easier for the consumer by limiting the number of restrictions allowed in an airfares advertisement.

Immediately one can see that this might infringe excessively on airline freedom to yield manage demand. There is an obvious relationship between the numbers and types of restriction imposed on airfares and airline yield benefit. Consumers do benefit from the lower fares which yield management allows, though they also benefit from less convoluted airfare offerings. 

Further research would be needed to evaluate the relative benefits of each option. In any case, Article 6 of Directive 2005/29 dealing with misleading actions is drafted broadly enough to conceivably apply to treating too many airfare restrictions as an unfair commercial act if the overall effect is to deceive or be likely to deceive the average consumer.

Conclusion

The European Community did not prepare itself for the advertising consequences of air passenger transport liberalization. Technology improvements facilitated trends towards greater use of misleading airline advertising. Industry self-regulation, despite its limitations, has played a greater role in combating misleading airline advertising than Community law. It probably prohibits a wider range of misleading advertising because unlike Community law it takes greater account of impacts on hasty/cursory readers. Asterisks, small print, contradictory or confusing advertisements can all be misleading under self-regulation but are unlikely to be so under Community law, though exactly how strict Community law will be under the new Directive is somewhat unclear

Recently enacted Directive 2005/29 on unfair commercial practices is an improvement on current Community law. It represents a peculiar combination of general and specific approaches to combating unfair commercial practices, which include misleading advertising.  The Directive however is underpinned by the policy of banning unfair practices rather than, in the case of advertising, compelling disclosure of information. Arguably that would be a better approach in dealing with misleading airline advertising.

Irish law has taken the compulsory disclosure route in dealing with problems of misleading airline advertising. Ireland appears to have encountered the problem of misleading airline advertising earlier than other states. The Irish approach avoids the difficult policy choice between hasty and careful consumers. The Irish law is largely ineffective at present but only for technical reasons the Irish government has been slow to overcome.

Ease of enforcement and prosecution are the principal merits of the Irish approach. It is easier to prove beyond reasonable doubt that stipulated information is missing that it is to prove the reaction of the average consumer. However, the Irish approach can be improved on. An obvious improvement, aimed at the problem of failing to make an internet booking at a low fare advertised in the press, would be to require electronic advertising to include the number of remaining seats at any given offer. More problematically, some limits on the number of airfare restriction could even be considered.

Despite the full harmonization goal of Directive 2005/29, it appears to still allow a national approach like the Irish one. Unlikely as it may seem now in political terms, the real question is whether the Irish approach should be replicated at Community level.

END

[1] There were  2/27/18/13  self-initiated or complaint-driven investigations into a local airfares display law (discussed in detail later) by the Irish statutory consumer body (the Director of Consumer Affairs) in 2001/2/3/4 respectively – see Annual Reports for each year.

[2] The related area of comparative advertising which primarily involves airlines complaining about each other’s comparative advertising lies beyond this paper.

[3] The examples referred to in the article are drawn from a review of adjudications made by Irish and UK Advertising Standards Authorities of complaints about airline advertising primarily from 2000 to 2004. See footnotes 37-39 below. 

[4] There are no references to the risk of misleading airline advertising in the relevant travaux preparatoires - European Commission Explanatory Memorandum COM (91) 275 final, 18.9.91, 2-18; Opinion of the European Parliament OJ C 125/133-151, 18.5.92; Opinion of the Economic and Social Committee OJ C 169/15-29, 6.7.92 – preceding the three liberalisation measures viz. Regulation 2407/92 on licensing of air carriers  OJ L 240/1, 24.8.92; Regulation 2408/92 on access for Community air carriers to intra-Community air routes, OJ L 240/8, 24.8.92 and Regulation 2409/92 on fares and rates for air services OJ L 240/15, 24.8.92 and Regulation, or in their preambles.

[5] Regulation 2027/97, OJ L 258/1, 17.10.97 as amended. Consolidated versions available at http://europa.eu.int/eur-lex/en/consleg/main/1997/en_1997R2027_index.html   – air passenger injury and loss; Regulation 261/2004, OJ L 46/1, 17.2.04. Text available at http://europa.eu.int/eur-lex/lex/LexUriServ/LexUriServ.do?uri=CELEX:32004R0261:EN:HTML  - air passenger delay.

[6] OJ L 250/17, 19.9.1984, as amended by Directive 97/55, OJ L 290/18, 23.10.1997. Consolidated text available at  http://europa.eu.int/eur-lex/en/consleg/pdf/1984/en_1984L0450_do_001.pdf  Accessed15.4.05

[7] OJ L 149/22, 11.6.05. Text available at http://europa.eu.int/eur-lex/lex/LexUriServ/site/en/oj/2005/l_149/l_14920050611en00220039.pdf  accessed 18.8.05

[8] The Act prohibits states from ‘enact[ing] or enforc[ing] any law relating to [air carriers] rates, routes, or services.’

[9] Morales v TWA 504 US 374

[10] Federal control over deceptive airline advertising is now exercised by means of federal Department of Transportation oversight. See generally Dickerson, “False, Misleading & Deceptive Advertising In The Travel Industry: The Consumer's Rights & Remedies” (2003) Paper To Be Presented At An Association Of The Bar Of The City Of New York CLE Program, Hot Topics In Advertising Law, New York City, published at http://classactionlitigation.com/library/False%20Advertising%20Web.htm , p 18

[11] In British Airways, adjudication of UK ASA, 12.6.00, text available at http://www.asa.org.uk/asa/adjudications/Adjudication+Details.htm?adjudication_id=29909 accessed 3.5.05, the airfare advertisement was supposed to be subject to 29 terms and conditions, though through an oversight the terms and conditions were not mentioned in the advertisement.

[12] American Airlines, 17.12.03, adjudication of UK ASA, text available at http://www.asa.org.uk/asa/adjudications/Adjudication+Details.htm?adjudication_id=37112  accessed 3.5.05

[13] Such as size etc of bed, as in British Airways, adjudication of UK ASA, 24.3.04, text available at http://www.asa.org.uk/asa/adjudications/Adjudication+Details.htm?adjudication_id=37664  accessed 3.4.05

[14] Though it can figure in airplane manufactures advertising as happened in Airbus, 14.3.2001 adjudication of UK ASA, text available at http://www.asa.org.uk/asa/adjudications/Adjudication+Details.htm?adjudication_id=28850 accessed 4.5.05

[15] In Ryanair 15.12.04, an adjudication of the UK ASA, text available at http://www.asa.org.uk/asa/adjudications/Adjudication+Details.htm?adjudication_id=39073  accessed 9.5.05,  the Authority decided an airline ad could use a city name for a regional airport some distance from the city if IATA, the airline trade body, approved the use of that name for airline purposes.

[16]  The Annual Reports of the Irish Director of Consumer Affairs for 1997-1999 and  2001-2004 record no prosecutions of airlines for misleading advertising under s. 8 of the Consumer Information Act 1978.  In Canada ‘the probability of a complaint of false advertising resulting in punishment by the law are extremely low. The chance of conviction is less than 1%’ – Wyckham, “Dealing with Misleading Advertising in the face of declining Government Resources”  (1996) 19 Journal of Consumer Policy, p 175

[17] The Directive also sets out the conditions under which comparative advertising is allowed but this lies beyond the scope of this paper.

[18] Which uses ‘without disclosing’

[19] Which uses the words ‘if …  it omits material information that the average consumer needs’ and ‘hides o provides in an unclear, unintelligible, ambiguous or untimely manner ‘

[20] Though it would be preferable if misleading was used instead – see  Attas, “What’s wrong with ‘Deceptive’ Advertising ?”  (1999) 21 Journal of Business Ethics, 49 at p 50. This article contains an interesting account of the moral arguments supporting the broad elements – ignoring advertisers intent, harm to consumers and ignoring impacts on 'unreasonable ' consumers - of the present legal position.

[21] This focus removes from the scope of this paper all criminal offences in which the advertiser’s intent or recklessness is part of the offence. Such offences can of course be relevant where there is intent plus misleading, but such instances are far less commonplace than merely misleading advertisements.

[22] Gut Springenheide v Oberkreisdirektor des Kreises Steinfurt C-210/96, 16.7.1998, para 31

[23] This position presages the conclusion of an American commentator in 1985 – Best, “Controlling False Advertising: A Comparative Study of Public Regulation, Industry Self-Policing and Private Litigation” (1985) 20 Georgia law Review 1 at p 58 -  ‘All would agree that personal interpretation by judges is appropriate in some cases and that factual data are needed to support interpretation of advertising in other cases.’

[24] Which has been significant source of debate in Germany particularly. See Dittmar, “Misleading Advertising – An End to the ‘Cursory Average Consumer?”  (1998) 20 European Intellectual Property Review  313

[25] In British Midland 9.2.05 the main low fares advertisement did not include a travel date restriction but the small print did. The UK ASA did not find this misleading but it still criticised the size of the small print. UK ASA decisions have the date of decision only, while Irish ASA decisions have additional referencing.

[26] SkyEurope Airlines 30.3.05

[27] Flightbookers 1.10.03

[28] Although the ASA Codes do. Examples of adjudicated complaints involving alleged offensive airline advertising include Ryanair 3.5.04 (British royal family – upheld); Ryanair 4.2.04 (bad language – upheld); Ryanair 26.3.03 (sexuality – not upheld); Ryanair 9.5.01 (sexuality – upheld); Ryanair 11.6.03 Gulf war – not upheld)

[29]  EC (Misleading Advertising) Regulations SI 134/1988

[30] This is noteworthy since it appears to undermine the philosophy underlying banning misleading advertising – ‘being misled ..isn’t in and of itself harmful.’ – Attas, footnote 18 above, at p 53. The blacklist of always prohibited acts in Annex I of Directive 2005/29 also omits any requirement of harm or its likelihood. Perhaps in both cases the lawmaker assumed the likelihood of harm was so inevitable it could be dispensed with.

[31] The text of s. 8 (1) is as follows ‘A person shall not publish or cause to be published, an advertisement  [for services] if it is likely to mislead and thereby cause loss, damage or injury to members of the public to a material degree’

[32] SI 468/2000

[33] See the compilation of national laws prepared in conjunction with the Unfair Commercial Practices Directive 2005/29, p 31-34, heading ‘C. Rules on price indications for services’, available at http://www.europa.eu.int/comm/consumers/cons_int/safe_shop/fair_bus_pract/index_en.htm   accessed 23.6.05

[34] Restrictions on’ the number of seats or the percentage of total capacity on specific routes’ attaching to an airfare must be disclosed, but this is different from advertising an open-ended offer without seat number restrictions which could be ended at any time or at the end of some defined period.

[35] An examination of Annual Reports of the relevant Irish authority, the Director of Consumer Affairs shows no convictions for misleading advertising under s.8 of the Consumer Information Act 1978 in 2004, 2003, 2001, 1999 and 1998 while there were  significant numbers of convictions during this period for failures to display stipulated information under a variety of information display laws.

[36] See Director of Consumer Affairs, Annual Report, 2003, p 13

[37] Section 11 (3) Consumer Information Act 1978

[38] Wyckham, “Dealing with Misleading Advertising in the Face of Declining Government Resources” (1999) 19 Journal of Consumer Policy 167-192

[39] See Reader, “Is Self-Regulation the Best Option for the Advertising Industry in the European Union? An Argument for the harmonization of Advertising Laws though the continued use of Directives”  (1995) 16 University of Pennsylvania Journal of International Business Law 181 at p 205; Howells and Wilhelmsson, 2EC consumer law: has it come of age?” (2003) 28 EL Rev 370 at p 385

[40] http://www.asai.ie/   accessed 3.5.05

[41] http://www.asa.org.uk/asa/  accessed 3.5.05

[42] http://www.iccwbo.org/home/statements_rules/rules/1997/advercod.asp accessed 3.5.05

[43] See European Advertising Standards Alliance, Advertising Self Regulation – The Essentials, (2003) p 14 available at www.easa-alliance.org  accessed 3.5.05

[44] The equivalent references in the British Code of Advertising, Sales Promotion and Direct Marketing are given in brackets. The British Code is available at  http://www.asa.org.uk/asa/codes/  accessed 10.5.05 

[45] Ryanair 25.7.01.

[46] Thomsonfly  CA/0411/0950 ‘From only 6.99 one way excludes taxes and charges.’; Ryanair CA/0410/0942; Aer Lingus AC/0410/0859; Aer Lingus AC/0411/0966; Aer Lingus AC/0403/0310

[47] Slattery’s Sun, AC/0410/0918

[48] Aer Lingus AC/0312/1233

[49] British Midland 29.5.02

[50] British European Airways 15.5.02. Based on the rational reaction expected of an average consumer, Community law might not regard such an advertisement as misleading.

[51] In Ryanair CB/0402/0160

[52] British Airways 12.7.2000

[53] American Airlines 17.12.03

[54] Ryanair 23.6.04

[55] British Midland 21.8.02

[56] Failure to so respond is itself a breach of the Code and happened  in BEA 14.8.02; Flightbookrers 3.7.02 and Air Vacations 13.9.2000 where the complaint was upheld.

[57] Unsuccessful complaints include British Airways 18.8.04; BEA 2.7.03; Air Portugal 30.10.02; Ryanair 21.1.04

[58] Air France 21.2.01

[59] Ryanair 10.7.02; Ryanair 4.12.02

[60] UK ASA in British Airways 29.1.03

[61] Ryanair 28.4.04

[62] Ryanair 91.02

[63] Ryanair 21.4.04

[64] Aer Lingus AC/0407/0634

[65] Volkov, Harker D, Harker M, “Opinions about advertising in Australia: a study of complainants” (2002) 8 Jourtnal of Marketing Commuications 229 . ‘The general findings from the reviewed literature indicated that complainants tend to be older, have attained higher levels of educational qualifications, earn a higher gross weekly income, possess greater degrees of wealth, have higher participant levels of local community involvement and, in general terms, have more resources to avail themselves of in order to allow them to take action when dissatisfied.’

[66] See Rott, “Minimum Harmonization for the Completion of the Internal Market? The Example of the Consumer Sales Directive”  (2003) 40 CMLRev  1107

[67] The original proposed formulation of Article 4 of the 2005 Directive might have posed some difficulties for the 2000 Order by introducing the country-of-origin principle, viz. if an advertisement is lawful in its state of origin, the receiving state could not ban it or insist it contained certain information. But this proposal was dropped.