Material information and misleading actions

Misleading actions and omissions

The Consumer Protection (Unfair Practices) (Jersey) Law 2018 prohibits 'misleading actions' and 'misleading omissions' that cause, or are likely to cause, the average consumer to take a different transactional decision - that is, any decision taken by the consumer concerning the purchasing of the product or whether to exercise a contractual right in relation to the product, including decisions not to act.

This does not only relate to pre-shopping but includes after-sales and continues for the lifetime of the product.

Misleading actions

Article 4 of the Law prohibits giving false information to, or deceiving, consumers.
A misleading action occurs when a practice misleads through the information it contains or its deceptive presentation (even if the information is factually correct) and causes, or is likely to cause, the average consumer to take a different transactional decision.

There are three different types of misleading actions:

• misleading information generally
• creating confusion with competitors' products
• failing to honour commitments made in a code of conduct

The information that may be considered as misleading is very wide and is listed in the legislation itself, including such things as:

• the existence or nature of the product - for example, advertising goods that don't exist
• the main characteristics of the product - for example, the availability, benefits, fitness for purpose or the geographical origin of the product
• the price or the manner in which it is calculated
• the need for a service, part, replacement or repair
• the nature, attributes and rights of the trader, such as qualifications

Misleading omissions

Article 5 prohibits giving insufficient information about a product. It is a breach of the Law to fail to give consumers the information they need to make an informed choice in relation to a product if this would cause, or be likely to cause, the average consumer to take a different transactional decision - for example, in order to make an informed decision about whether to buy or how much to pay, the average consumer buying a car needs to know whether the car has previously been an insurance write-off; the trader therefore has to disclose this information, whether or not the consumer asks for it.

Traders must give information to consumers in a timely manner. It should be provided to assist the consumer in making an informed choice. Supplying information too late could constitute an omission.

It is a breach of the Law to:

• omit material information
• hide material information
• provide material information in a manner that is unclear, unintelligible, ambiguous or untimely
• fail to identify the commercial intent (unless this is apparent from the context)
  

Material information

'Material information' means information that the consumer needs to make an informed transactional decision and generally any information required to be given to the consumer by law.

Examples of misleading actions and omissions;

1. A trader omits to mention that a contract has to run for a minimum period, or that the consumer has to go on making purchases in future, this would probably be a material omission.
2. A trader advertises mobile phones for sale. If the phones were second hand and/or had been reconditioned, this would be material information, which would need to be made clear to consumers.
3. A trader operates a private car park. If he fails to clearly display the price(s) of parking at a point before the consumer enters the car park and incurs a charge, this would be failing to provide material information.
4. A trader sells audio-visual equipment. He omits to inform the consumer that a particular product includes only an analogue tuner, and of the implications in the context of the switch from analogue to digital-only television. This is likely to be material information that the consumer needs to make an informed decision.