A Comparative Study on the Regulation in the Principal of Deceptive, False and Misleading Advertisement

• Main Authors: Jian-Yu, Chen, 陳建宇
• Other Authors: Andy C.M. Chen
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/53716969579931993448

碩士 === 東吳大學 === 法律學系 === 103 === Starting from 2003 when the first case of mail order catalog advertisement was published by a bank, the Taiwan Fair Trade Commission (TFTC) has regarded banks sharing cooperative relationships with mail order companies on mail order catalogs and transactions as the advertisers for mail orders. Afterwards, businesses sharing cooperative relationships on merchandising and advertisements, through television, online, and brick- and-mortar, may be considered advertisers. However, in the current commercial society, advertisers assign few advertisements to advertising agencies for production or to advertising media for publishing. Instead, advertisements are produced through the cooperation of multiple agencies. At this time is how to determine what artificial advertisers, namely article 21 TFTC Act regulate the body should be subject to administrative responsibility, was the focus of this study. As typically specified in contracts between retailers and suppliers, if the contents of advertisements provided by suppliers are sanctioned by the TFTC, the suppliers must bear all responsibilities including the fines imposed on the retailers. Consequently, problems have surfaced regarding the necessity of the TFTC’s involvement in such contracts, the advertiser identification standard of the TFTC, and whether the retailers should be generalized as the advertisers. In this study, the discretionary factors employed by the TFTC for identifying the advertisers in its sanctioned cases were generalized on the basis of various types of transactions including television, online, brick- and-mortar and construction advertisements. Subsequently, relevant legal topics from the United States, the European Union, and Japan were investigated for examining the aforementioned problems. This paper argues that determine whether the business should bear the responsibility of the advertiser, deliberately, on finds fault of great significance. The light of the US law for the advertising agency, medium, whether it should be responsible for the content provided by others, depended on knowing or should have known, whether substantive edit control capability off, while others provide information published on the website is difficult to count the number, one by one in detail beyond its inspection. The EU directive on electronic commerce service provider of media content provided by others on whether the responsible department to actually recognize the disputed practices or the content of the illegal nature of the elements. Respect Japan, concerning e-commerce transactions industry, accompanied by information on illegal custody media responsibility, according to the provider liability limitation law, but also depended on knowingly or should have known case of illegal information, the beginning shall be responsible. Particularly with regard to Taiwan after the implementation of the Administrative Punishment Law, is no longer taken "presumed fault" concept, but by the administrative authorities on the perpetrator's intent, fault liability burden of proof, so to retailers advertising content of the authenticity whether implementation reasonable possibility of supervision and management, for the ability to retailers on the review of advertising and intentional negligence of the judge, in fact, are closely related. And from the perspective of economic analysis, false or misleading advertising is mainly caused by information asymmetry between companies and consumers. The product-quality- related information perceived by retailers and suppliers is actually dissimilar. Although retailers sell products to consumers, whether retailers must bear the responsibilities of advertisers may be influenced by consumers’ perceptions of their trustworthiness and by their advertisement verification abilities. In addition, regarding the characteristics of online transactions, whether shopping websites enable verifying if the advertisements uploaded by suppliers are consistent with regulations imposed by competent authorities may affect the aforementioned problem. Assigning the responsibilities of verifying the advertisement on each product to all shopping websites may result in an excessive increase in the transaction costs of shopping website managers. According to the Coase theorem on transactional costs, the investigation began from the concept of minimal-cost prevention. Because suppliers acquire the greatest amount of product quality information, they are responsible for the advertisements they publish. From the perspective of least cost avoider, such a false or misleading advertising prevention approach may be more economically efficient than requesting shopping website managers to evaluate advertisements. Otherwise, shopping website managers may shift the fines on suppliers through their contracts, placing excessive responsibilities on suppliers.　 Keywords: unfair competition; information asymmetry; advertiser; advertising agency; advertising medium; endorser