The meaning of deceptive advertisements under Article 3(1)2 of the Act on Fair Labeling and Advertising and Article 3(2) of the Enforcement Decree of the same Act, and the method of determining whether an advertisement is likely to deceive or mislead consumers, or cause consumers to become aware of such fact / In determining whether an advertisement constitutes “marcing advertisement,” whether the circumstances, etc. that a consumer came to know in the course of trading related goods or services should be considered after the advertisement is made (negative in principle)

According to Article 3(1)2 of the Act on Fair Labeling and Advertising, and Article 3(2) of the Enforcement Decree of the Act on Fair Labeling and Advertising, a deceptive advertisement means an advertisement that is likely to deceive or mislead consumers by concealing or reducing facts, and is likely to undermine fair trade order. Meanwhile, as well as an expression expressed directly and indirectly in an advertisement through a door, word, design, design, design, sound, or combination thereof, as well as an expression expressed indirectly in an advertisement, and a customary and ordinary situation, etc., which form a whole and extreme increase. As such, whether an advertisement is likely to deceive or mislead consumers should be objectively determined on the basis of the overall and extreme increase that ordinary consumers who receive the advertisement. Moreover, the purpose of the Act on Fair Labeling and Advertising is to prohibit unfair advertising and to provide useful information to consumers, thereby establishing a fair trade order and protecting consumers, such as goods or services, and then determining whether the advertisement is subject to fair trade order.

Article 3(1)2 of the Act on Fair Labeling and Advertising, and Article 3(2) of the Enforcement Decree of the Act on Fair Labeling and Advertising

Supreme Court Decision 2011Du82 Decided June 14, 2013 (Gong2013Ha, 1239)

Home Plus Co., Ltd and one other (Attorneys Lee Jae-de et al., Counsel for the plaintiff-appellant)

Fair Trade Commission (Law Firm spring, Attorneys Kim Min-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2015Nu45177 decided October 19, 2016

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal are examined.

1. According to Article 3(1)2 of the Act on Fair Labeling and Advertising (hereinafter “Fair Labeling and Advertising”), and Article 3(2) of the Enforcement Decree of the same Act, a deceptive advertisement means an advertisement that might deceive or mislead consumers by concealing or reducing facts, and is likely to undermine fair trade order. Meanwhile, a general consumer as well as an expression expressed directly in an advertisement through a door, words, designs, designs, designs, sounds, or combination thereof, as well as an indirectly expressed matters, and customary and ordinary circumstances, etc., which form a overall and extreme increase. As such, whether an advertisement is likely to deceive or mislead consumers, it should be objectively determined on the basis of the overall and extreme increase of consumers who received the advertisement, based on which the consumer is subject to such reasonable consideration as to whether it constitutes an act of fair trade order, such as establishing a fair advertising order and providing information to consumers. As such, the purpose of determining whether an advertisement constitutes an act of free trade order and providing information to consumers is to ensure that the consumer can not be determined in the process of fair advertising or offering of information (see Supreme Court Decision 2011Du82, Jun. 14, 2013).

2. In full view of the evidence of its employment, the court below acknowledged the fact that the plaintiffs did not state that they may subscribe to the gift events only if they agreed to collect their personal information, including resident registration numbers and mobile phone numbers, and provide them to insurance companies, while advertising the gift events held over 12 times, and determined that this constitutes a deceptive advertisement under Article 3 (1) 2 of the Advertising and Advertising Act, since it is likely to undermine fair trade order by concealing transaction conditions that may have an important influence on consumers' choice of purchase. The court below determined that there is a possibility that consumers can correct wrong perceptions by obtaining correct information at the stage of preparation of the right to subscribe after the advertisement.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the origin of advertisements, consumer misunderstanding, and fair trade obstruction.

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)