Use of comparative advertising, a form of advertising which identifies and compares competing services and goods based upon certain qualities such as price, performance or other specific features, is a well-established marketing tool in many markets but must be deployed very cautiously in the MENA region. This article will look at the position within the UAE. Islamic Shari’a law is an important source of the UAE legal system and therefore any form of commercial activity that does not adhere to the Shari’a principles of justice and fairness is likely to be in breach of a civil law.
Potential offences include:
The penalties for breaches of the above laws include fines of up to AED20,000 (US$5,500), closure of business, damages and even imprisonment (the offences are largely criminal). It is worth noting that defamation actions in the UAE are easier to establish than in many other jurisdictions
The complainant must show that:
a false or defamatory statement was made;
the statement was issued to a third party (either in writing or verbally); and
the statement caused “harm” to the complainant.
The highest court of appeal in Dubai, the Court of Cassation,recently held that mere criticism may be regarded as defamatory if it exceeds the “normal limits” or affects the honour of a defamed individual. Advertising material containing derogatory comments about competitors may well be found to be defamatory by a UAE court. Whilst it is clear that in the UAE advertising content that breaches public morals or standards of integrity (for instance, if it is misleading or false) will always be illegal, there is not a clearly defined position in relation to comparative advertising, especially where the content is honest and not intended to deceive.
Depending on the content and context, comparative advertising may breach the laws referred to above. Although not applicable within the UAE, following the principles set out in the EU Comparative Advertising Directive is advisable as best practice. For example, advertisements must:
not be misleading;
compare like with like in terms of goods and services;
objectively compare important features of the products or services concerned;
not discredit trade marks.
For specific concerns, local advice should be taken.
This article is part of BrandWrites - December 2014