Aggressiv marknadsföring

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Juridiska institutionen

Sammanfattning: Marketing through aggressive methods has traditionally been considered inappropriate and prohibited in Sweden. It was first when Sweden adopted Marketing Act (2008:486) an explicit prohibition of aggressive commercial practices was introduced. The reason was that the Directive 2005/29/EC “the Unfair Commercial Practices Directive” - explicitly prohibiting aggressive commercial practices – was implemented. Since then, commercial practices are considered aggressive according to Marketing Act if it involves harassment, coercion, physical violence, threats or other aggressive means. The purpose of this thesis is to describe and analyze the understanding of aggressive commercial practices in Swedish law and the impact of the rule given in Swedish case law. To fulfill this purpose the implications of aggressive marketing by § 7 Marketing Act are interpreted in light of the directive. This is an explanation of the meaning of the concepts of harassment, coercion and undue influence, certain guiding factors to be considered and the impact of aggressive methods in the so called black list, which shall in all circumstances be considered unfair. A key part of this thesis is how the concept of "undue influence" with the requirement "exploiting a position of power" should be interpreted. One interpretation is that exploiting a position of power is constituted when the trader in different ways have a psychological power against the consumer and significantly limits the consumer's ability to make an informed decision. To investigate the effect in practice, cases of the The Swedish Market Court were examined and analyzed. In addition, older cases are presented that I find to have aggressive elements and could have been tested on the current prohibition, such as advertising that plays on fear. The conclusion is that harassment, coercion and undue influence are difficult to identify and their scope overlap. My opinion is that these concepts should be more clearly defined and that the Market Court should interpret their meaning. The most important issue is instead where the line between legal practices and aggressive commercial practices should be set. This is determined by assessing whether the practice significantly impairs the average consumer's freedom of choice and thereby causes him to take a transactional decision that he would not have taken otherwise, the so-called transaction test. Where the limit is for different situations is unclear, pending the guiding judgments from the Market Court and in particular from European Court of Justice. I am critical towards that the definition of "undue influence" is not explained in the Swedish legal text. For the study of case law, it is concluded that very few cases of aggressive commercial practices, as provided in § 7 Marketing Act, have been decided in the Swedish Market Court. However, there are several older cases that can be classified as aggressive. Therefore, crucial to the effect is how the various concepts that constitute aggressive commercial practices will be interpreted and that the Court takes every opportunity to formulate indicative sentences.

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