“Advertising is the key to business success.” Probably all entrepreneurs realize that effective advertising is indispensable in the pursuit of almost any business activity. In the age of specialization, it is natural that some of the business operator’s functions, especially minor ones, are outsourced to third-party businesses, either to save capital or to ensure that the service in question is provided by professional firms. An additional advantage of adopting this approach comes from the general rule expressed in Art. 429 of the Civil Code, pursuant to which a business operator that has entrusted the performance of an activity to another business entity is released from liability for any damage caused by such entity when performing that activity, provided that the former was not at fault when choosing the said business entity or that it entrusted the activity to a person, business operator, or business which performs such activity within the scope of its professional activity. Consequently, the business operator in question should benefit from high-quality service, in addition to the guarantee that it would not be held liable for any potential damage associated with the performance of the outsourced job.
However, the situation is slightly different for advertising activities. The applicable regulations here are Art. 16 and 17 of the Act on Counteracting Unfair Competition of 16 April 1993, which provide that the liability for an advertisement that is an act of unfair competition falls on the business operator together with the advertising agency (or any other business operator that created the advertisement). Therefore, for the business operator to be liable, it is irrelevant whether it has outsourced the creation of the advertisement to a professional entity that is engaged in such business, because the provisions of Art. 16 and 17 of the Act on Counteracting Unfair Competition stand as a lex specialis in relation to Art. 429 of the Civil Code and consequently exclude its applicability. It should also be noted here that the Supreme Court made it clear that for an advertisement to be an act of unfair competition, it is not necessary that the business operator’s actions are deliberate or intended to create adverse consequences.
It is important to be aware of what kind of advertising may constitute an act of unfair competition. The legislator stipulates, without providing an exhaustive list, that unfair advertising includes but is not limited to advertising that is contrary to the law, morality, or that is offensive to human dignity; advertising that misleads customers and may influence their decisions regarding the purchase of a good or service; advertising that seeks to appeal to customer feelings by inducing fear, taking advantage of prejudices or children’s credulity; any statement intended to encourage purchases of goods or services while appearing to be neutral information; and advertising that interferes with privacy, in particular by oppressive solicitation of customers in public places, the mailing of any not-ordered goods at the customer’s expense, or the abuse of technical means of communication.
Some of these descriptions include vague concepts, many of which can be identified as acts of unfair competition only after they are examined in the context of a specific situation. For this reason, when you order an advertisement or suspect that a certain advertisement directed against you represents an act of unfair competition, it is worthwhile to seek the advice of lawyers, who can either prevent the advertisement that may expose the business operator to civil liability from being published or take legal steps against entities that infringe your interests by unfair advertising.