A travel agency was ordered to compensate a consumer for misleading advertising
By Mariano Peruzzotti and Antonella Balbo
On November 5, 2021, the Court of Appeals in Commercial matters of the City of Buenos Aires (“Court of Appeals”) ordered Almundo, an Argentine travel agency, to deliver the plane tickets in the same conditions as it was advertised as well as to pay a compensation of Argentine Pesos 250,000 as punitive damages for misleading digital advertising.
A consumer filed a complaint alleging that, while browsing the Internet in 2017, she received an advertisement stating the following: “Fly Almundo with CyberMonday. Only for today! The ticket to London that you were looking for at only Argentine Pesos 17,686”. Since the advertisement did not contain any clarification regarding the characteristics or conditions of the ticket, the plaintiff understood that she could choose any option and that the price would remain the same. Upon accessing the advertised link, she detected that the correct price for a ticket was rather of Argentine Pesos 297,693.50. The plaintiff argued that this circumstance had happened on several occasions and with different destinations.
The Court of First Instance rejected the complaint on the grounds of considering that the plaintiff had not proved the existence of any unlawful activity carried out by the defendant. In this regard, the judge pointed out that the facts invoked in the complaint were only supported by documentary evidence submitted by the plaintiff -screenshots of the flights offers and ticket searches-. Therefore, the judge concluded that the evidence produced was insufficient and inconclusive. The judgment was appealed by the plaintiff.
The Court of Appeals overturned the First Instance Court’s judgment on the basis of the following arguments:
- Unlike analog (graphic) ads, digital advertising presents undoubted evidentiary obstacles for consumers who are constantly exposed to a considerable amount of offers and advertisements while browsing the Internet. As it is commonly known, these ads are only available for a limited period of time and are constantly modified without leaving a trace to the offer recipient. These particularities require a flexible approach when construing the burden of proof rules. An extremely strict position on this aspect could affect consumers’ rights.
- The advertisements were contrary to the provisions of section 1103 of the Argentine Civil and Commercial Code and section 9 of former Fair Trade Law No. 22,902, in force at the time of the facts. The Court ruled that the advertisement was misleading and, therefore, prohibited. This triggers supplier’s liability. The Court of Appeals considered that these advertisements violate consumers’ freedom of choice as consumers are attracted by supplier through misleading means. The Court further stated that contracting through digital platforms as well as digital advertising impose additional challenges to consumers since their decision-making ability is affected due to the speed of the offers and the fact that consumers are generally unaware of the basic characteristics of these new contracting and advertising forms.
- Therefore, the defendant shall compensate damages pursuant to section 1716 of the Argentine Civil and Commercial Code and section 10 bis of Consumer Protection Law No. 24,240.
- Considering the expectations generated by the misleading advertisements, the defendant was ordered to deliver, upon payment of the advertised price, products equivalent to those advertised, i.e., two tickets to London, two to Miami and two to Barcelona and compensate damages in the amount of Argentine Pesos 250,000 as punitive damages.
Finally, the defendant filed an Extraordinary Relief aimed at reviewing the decision which was rejected by the Court of Appeals by resolution of December 9, 2021.
For further information contact: mperuzzotti@ojambf.com.
