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EUROPE, MIDDLE EAST & AFRICA: SWEDEN

SE-Sweden: Konsumentombudsmannen ./. Metro
Authors: Michael Plogell, Wistrand Advokatbyrå

The present case 1 , one that is perhaps more interesting form a procedural point of view as it concerned a petition for a new trial based on Marknadsdomstolen’s (the Marketing Court) judgement of how the court costs should be divided between the parties, may still be regarded as marking the end of a saga entailing a rather interesting dispute between the Konsumentombudsmannen (Consumer Ombudsman) and Metro newspaper, a gratuitous daily newspaper distributed in some of the bigger cities of Sweden.

In the initial proceedings 2 the Konsumentombudsmannen brought an action against Metro for two, so called, wraps, on grounds that the wraps constituted undue marketing contrary to marknadsföringslagen, lag 1995:450 (the Marketing Act). Wraps are full-page advertisements covering a journal or if one will, “wrapping” it. 

The first wrap in question consisted of an advertisement for Microsoft’s x-box game Halo 2. The advertisement was drawn up as a first page of a newspaper containing the headline “the World will never be the same” and portraying the Earth burning. The advertisement contained Metro’s logo at the top of the page together with the current date. At the top right corner of the wrap one could find a message in small letters stating “advertisement page”.

The second wrap contained an advertisement for ice-cream portraying the GB Glace Man (well-known trademark in Sweden). This wrap was drawn up in much of the same manner as the wrap containing the advertisement for Halo 2, albeit with a less dramatic message. stating that “the summer is on its way”. Furthermore, the second wrap did not include a message stating “advertisement page”.

All advertisements in Sweden, according to Marknadsföringslagen, must be drawn up in a manner clearly indicating that it is for marketing purposes. The requirement of clarity is particularly stringent when dealing with commercial messages and editorial material, a principle which is also embedded in the International Chambers of Commerce’s rules on marketing. Marknadsdomstolen (Marketing Court) has on several occasions construed commercial messages, which could easily be mistaken as forming part of editorial material, as constituting undue marketing.

Furthermore, the Marknadsdomstolen has in previous case law established that newspaper companies bear joint responsibility with advertisers regarding undue commercial messages inserted in newspapers, irrespective of the fact that no active part was taken by a company in the drawing up of the messages. However, the joint responsibility is limited to cases where it should have been obvious to a newspaper company that the commercial message in question is undue.

Metro argued that as the wraps formed contents of a periodical publication and as such they were protected by the constitutional rules on freedom of expression. According to the rules, prohibition of expression may only occur in situations envisaged and regulated by constitutional legislation and none of the exceptions were applicable in the present case.

The first question the Marknadsdomstolen determined was whether the wraps were protected by the rules on freedom of expression. This question was answered affirmatively. However, the Marknadsdomstolen added that in certain situations interventions, according to marknadsföringslagen, were allowed against commercial messages. Interventions are allowed against a message that is a) strictly commercial; b) its purpose is commercial in relation to the object; and c) the message is not directed to instil the public with certain values or influencing the public behaviour in certain direction. The rules on freedom of expression are given right of priority in dubious situations.

The Marknadsdomstolen made the assessment that the wraps were strictly commercial and saw no hindrance in applying the rules on undue marketing. Marknadsdomstolen continued stating that the requirement of clarity entails the possibility for the consumer to show, using a minimum amount of effort, that he/she is not interested in taking notice of the message in question.

In respect of the first wrap, containing the advertisement for Halo 2, the Marknadsdomstolen came to the conclusion that the requirement of clarity was not fulfilled, as the wrap was formed to look like a first page of the newspaper. The message at the top right corner of the wrap stating “advertisement page” was not enough to fulfil the requirement of clarity. Moreover, during the proceedings, testimony was presented to the Marknadsdomstolen that the reason for placing a message at the top right corner was so that the wrap could be distinguished as an advertisement. The Marknadsdomstolen found that this was evidence that it must have been obvious to the editor-in-chief that the wrap may be mistaken as editorial material. Thus, the Marknadsdomstolen established the existence of Metro’s joint responsibility.

In respect of the second wrap, portraying the well-known trademark of the ice-cream company GB Glace, the Marknadsdomstolen found that the requirement of clarity was fulfilled due to the trademark’s popularity among Swedish people. A consumer in Sweden identifies easily the trademark and connects it to the ice-cream company thus, Marknadsdomstolen found no risk of confusing the wrap as editorial material rather than an advertisement.

The Marknadsdomstolen ordered the parties to split the cost of the court, a decision which formed the ground for Metro’s petition to the Högsta Domstolen (Supreme Court of Sweden) for a new trial. The petition was denied, and with it ended this saga.