With the Competition and Consumer Protection Act 2014 just signed into law, the recent case of Vodafone Ireland Limited -v- Telefonica Ireland Limited (O2) is very topical. Although the judgment is limited in its application, the case is significant as it saw a major company using consumer protection law against one of its main competitors.
In February 2014, Vodafone challenged O2's advertising of its 'Freedom' Pay-As-You-Go mobile phone package in the High Court, alleging that it was misleading to Irish consumers. Vodafone's claim was based on section 71 of the Consumer Protection Act 2007 ("CPA") which allows "any person" to apply to court for an order prohibiting a trader or person from engaging in a prohibited act or practice. Vodafone also based its claim on the 2007 Misleading Advertising Regulations which allow a trader or any person apply to Court for an order prohibiting a trader from engaging in a misleading marketing communication or a prohibited comparative marketing communication. In short, Vodafone asked the High Court to prohibit O2 from engaging in what Vodafone alleged to be deceptive advertising.
The advertising campaigns
Specifically, Vodafone took issue with O2's autumn 2013 campaign, which advertised "unlimited internet" for 10 on across various media. In particular, Vodafone claimed that special advertisements on bus shelters were misleading to customers. Some advertisements lacked any small print to explain that a top up of 20 was required to redeem the offer. Where such advertisements did state the top up requirement, Vodafone argued that the small print was so small as to be unreadable by the average consumer.
In February 2014, the 'Freedom' campaign was replaced by a similar promotion, once again offering "unlimited calls" for 10. After O2 declined Vodafone's request to stop these adverts, Vodafone brought the case in the High Court.
Unsurprisingly, O2 rejected allegations of misleading advertising, suggesting that their approach to the 'Freedom' campaign represented standard "industry practice".
Mr Justice Barton's judgment focused on how the case should advance, rather than on the substance of Vodafone's claim. As a result, it is...