BACKGROUND:

CCP took suo motto notice of the advertisements of ‘8 Anay per call’ offer of ZONG and ‘Ufone UWON’ package and issued sow cause notice to both the undertakings for alleged violation of Section 10 of the Ordinance.

In its analysis, the Commission examined the scope of the terms ‘false’ and ‘misleading’ which are elaborated in para 23 of the order. Regarding the definition and distinction between ‘false’ and ‘misleading’ information, it is held that, ‘false information’ can be said to include: oral or written statements or representations that are; (a) contrary to truth or fact and not in accordance with the reality or actuality; (b) usually implies either conscious wrong or culpable negligence, (c) has a stricter and stronger connotation, and (d) is not readily open to interpretation. Whereas ‘misleading information’ may essentially include oral or written statements or representations that are; (a) capable of giving wrong impression or idea, (b) likely to lead into error of conduct, thought, or judgment, (c) tends to misinform or misguide owing to vagueness or any omission, (d) may or may not be deliberate or conscious and (e) in contrast to false information, it has less onerous connotation and is somewhat open to interpretation as the circumstances and conduct of a party may be treated as relevant to a certain extent.

Similarly, the Commission also elaborated upon who would constitute a ‘consumer’ in such matters. In this regard it was held that, the consumer to whom such information is disseminated has to be the ‘ordinary consumer’ who is the usual, common or foreseeable user or buyer of the product. Such a consumer need not necessarily be restricted to the end user. It has also been emphasized that the ‘ordinary consumer’ is not the same as the ‘ordinary prudent man’ concept evolved under contract law. Unlike the ‘ordinary prudent man’ the thrust on ordinary diligence, caution/duty of care and ability to mitigate (possible inquiries) on the part of the consumer would not be considered relevant factors.

Additionally, the Commission also noted that “fine print disclaimers are inadequate to correct deceptive impressions”. Similarly, on the argument that consumers could call and obtain all necessary information, the Commission responded by holding that “if all distribution of information is made subject to the requirement that consumer could have ascertained its veracity or the details thereof, it would render the need for section 10 (deceptive marketing) redundant.”

ORDER:

CCP on 29-09-2009 passed an Order in respect of Show Cause Notices issued to M/s China Mobile Pak Limited (CMPak) & M/s Pakistan Telecom Mobile Limited (Ufone) wherein the subject advertisements by both the undertakings have been held in violation of Section 10 of the Competition Ordinance. However, owing to the conciliatory and compliance oriented approach, and the assurances given on part of both the companies through an undertaking in writing for future compliance with the provisions of the Ordinance, CCP has not imposed any penalty. Both the companies have been reprimanded that in future CCP will take a very strict view of any or all non-compliances or contraventions under the Ordinance.

CURRENT STATUS:

Compliance by the Undertaking