As a commercial entity, a vendor is bound by a common duty of care, which in terms of marketing and discount campaigns refers to ensuring that products are available and that the information given in advertising is correct. Proper care entails, among other things, correcting mistakes or changed information in marketing.
The purpose of correcting mistakes in marketing is to reach customers
If an advertisement is published with erroneous or incomplete information, it is the advertiser’s duty to correct the mistakes as effectively as is necessary. The correction must be in proportion to the impact and scope of the marketing and to the harm caused to the consumer by the mistake.
The correction must be directed to the same consumers as the erroneous advertisement. In principle, the correction must be published using the same channel as the original, erroneous advertisement.
Mistakes must clearly be corrected with a correction outside stores, and stores must prominently feature information on the correction. In-store personnel must also be provided with the correct information.
Compensation for mistakes in advertising
If the advertiser has acted negligently, a consumer may demand compensation for financial losses caused by an incorrect advertisement (for example the cost of making a pointless trip to the store).
The advertiser is not usually liable for compensation:
- if an advertisement contains erroneous information but the advertiser has been careful and has corrected the advertisement and the situation appropriately
- if the advertiser is able to prove that the cause of the mistake was beyond their control
- if the mistake is so clear that the consumer could have been assumed to realise that it was incorrect.
With respect to special offers, the advertiser's duty of care is emphasised because the purpose of a special offer is to attract consumers to the store to buy the desirable product offered.
Because of the exceptional nature of special offers, there is no need to separately investigate whether the advertiser had taken proper care. If a special offer product runs out despite the seller's precautionary measures, the seller must be prepared to compensate consumers for any harm caused. For example, the consumer may be given the opportunity to buy a similar product on the terms of the special offer, or the opportunity to buy the special offer product later.
The binding nature of an erroneous price
The seller's duty of care entails sufficient care in, for instance, their marketing. Consumers have the right to assume that the price information given in advertising is correct.
In online stores and internet advertising, information can be updated quickly and at any time. For this reason, online advertisers have a greater responsibility for the accuracy of their advertisements and store data, and the requirement for proper care is emphasised. The principle for vendors operating online is that the information given on a product – for instance its price and properties – is binding.
A consumer can demand a product at the price offered online after he/she has accepted the offer by ordering the product. Only in certain cases can the seller appeal to the incorrectness of the information and withdraw from the deal:
- If the consumer should have understood that the price was obviously wrong, the price is not binding on the seller. This applies, for instance, when the difference between the indicated price and the actual price is significant, or if the incorrect price can be considered to be exceptionally low compared to general price levels. If a television worth 600 euros is being offered at the price of 60 euros, it is probably a mistake.
- If, according to the seller, the actual price was different from the one with which the consumer placed his/her order, the seller must provide reliable proof of this.