Facts
Decision


On 5 November 2021, the Buenos Aires Court of Appeals in Commercial Matters ordered Almundo, an Argentine travel agency, to deliver plane tickets in the same conditions as advertised and pay a compensation of 250,000 Argentine pesos as punitive damages for misleading digital advertising.

Facts

A consumer filed a complaint alleging that, while browsing the internet in 2017, she had received an ad stating the following: "Fly Almundo with CyberMonday. Only for today! The ticket to London that you were looking for at only Argentine Pesos 17,686". Since the ad did not contain any clarification regarding the characteristics or conditions of the ticket, the plaintiff understood that she could choose any option and that the price would remain the same. Upon accessing the advertised link, she detected that the correct price for a ticket was rather of 297,693.50 Argentine pesos. The plaintiff argued that this circumstance had happened on several occasions and with different destinations.

Decision

The first-instance court rejected the complaint on the grounds that the plaintiff had not proved the existence of any unlawful activity carried out by the defendant. In this regard, the judge pointed out that the facts invoked in the complaint were only supported by documentary evidence submitted by the plaintiff (screenshots of the flights offers and ticket searches). Therefore, the judge concluded that the evidence produced was insufficient and inconclusive.

The judgment was appealed by the plaintiff. The Buenos Aires Court of Appeals in Commercial Matters overturned the first-instance court's judgment on the basis of the following arguments:

  • Unlike analogue (graphic) ads, digital advertising presents undoubtable evidentiary obstacles for consumers, who are constantly exposed to a considerable amount of offers and ads while browsing the internet. As it is commonly known, these ads are only available for a limited period of time and are constantly modified without leaving a trace to the offer recipient. These particularities require a flexible approach when construing the burden of proof rules. An extremely strict position on this aspect could affect consumers' rights.
  • In this case, the ads were contrary to the provisions of section 1103 of the Argentine Civil and Commercial Code and section 9 of the former Fair Trade Law (No. 22,902), which was in force at the time of the facts. The Court ruled that the ads were misleading and, therefore, prohibited, which triggered the supplier's liability. The Court considered that the ads violated consumers' freedom of choice, as the supplier had attracted consumers through misleading means. The Court further stated that contracting through digital platforms, as well as digital advertising, had imposed additional challenges to consumers, since their decision-making ability was affected due to the speed of the offers and the fact that consumers are generally unaware of the basic characteristics of these new contracting and advertising forms.

Therefore, the Court concluded that the defendant had to compensate damages pursuant to section 1716 of the Argentine Civil and Commercial Code and section 10 bis of the Consumer Protection Law (No. 24,240).

Considering the expectations generated by the misleading ads, the defendant was ordered to deliver, upon payment of the advertised price, products equivalent to those advertised – namely two tickets to London, two to Miami and two to Barcelona – and compensate damages in the amount of 250,000 Argentine pesos as punitive damages.

The defendant later filed an extraordinary relief aimed at reviewing the decision, but it was rejected by the Court in a decision on 9 December 2021.

For further information on this topic please contact Mariano Peruzzotti or Antonella Balbo at Ojam Bullrich Flanzbaum by telephone +54 11 4549-4900 or email ([email protected] or [email protected]). The Ojam Bullrich Flanzbaum website can be accessed at www.ojambf.com