Qatari law contains numerous provisions which might concurrently or conjunctively give rise to a cause of action for unfair and comparative advertisements
Advertising in Qatar is regulated primarily by legislation dealing directly with the issue, but also in more general terms under laws addressing unfair or fraudulent business practices and practices considered to be against good morals. However, Qatar employs a dual legal system, reflecting elements of both civil and Islamic Sharia law. This article explores the former category of laws, with brief comment on some of the moral codes of Sharia law in light of public policy considerations. For the purposes of this article, ‘unfair advertising’ refers to false or misleading advertising, and any reference to ‘comparative advertising’ does not include advertising containing such false or misleading references. To date, there is no Qatari case law on the definition of ‘comparative advertising’. However, the courts would likely follow the definition of the term as set out in the EU Directive on Misleading and Comparative Advertising (2006/114/EC), which defines it as advertising which “explicitly or by implication makes reference to a competitor or competing goods or services”. Laws which specifically regulate advertising include the Consumer Protection Law (8/2008) and the Advertising Law (1/2012). General acts of unfair or comparative advertising may be subject to the Print and Publications Law (8/1979), the Electronic Commerce and Transactions Law (16/2010), the Commercial Code (27/2006) and the Telecommunications Law (34/2006) and its 2009 bylaw. The Law on Trademarks (9/2002) may also be applied to unfair and comparative advertising. Consumer Protection Law The Consumer Protection Law was enacted to consolidate and update Qatar’s consumer rights legislation and to meet the country’s obligations under the UN Guidelines for Consumer Protection. The law specifically provides that advertisements may not be misleading or deceptive in terms of either the essential information contained therein or any descriptions relating thereto. Therefore, where an advertisement is considered to be unfair, it may fall foul of the Consumer Protection Law. First-time contraveners (which, within the term’s extended meaning, include the owners of the contravening business) of the Consumer Protection Law may face fines of up to around $14,000, imprisonment for up to two years, confiscation and destruction of the relevant advertising materials and closure of the outlet where the associated goods and services were made available to the public. Under the Consumer Protection Law, recourse is to the Consumer Protection Department, which is part of the Ministry of Business and Trade, and no official fees are payable. Complaints are initiated by a telephone call to the department’s officials, who will offer guidance on what is required to support the relevant claims. Typically, a complaint must include the complainant’s name and personal details, including his or her job title (if a natural person), with documents to support the particulars and a written account of the complaint. If damages have been caused by the incident, these may also be alleged, provided that proof can be supplied. Advertising Law Although no official translation of the law is available, the Advertising Law appears to regulate all advertising apart from that appearing in the traditional press (see below). The Advertising Law contains a catchall provision which specifies that relevant advertisements may not, among other things, be contrary to public morals, and that all “trade marks, trade names and information” must be factually accurate and comply with other Qatari laws. On the face of it, any false or misleading advertisement falling within the ambit of the law (whether comparative in nature or not) may be hit by the provision that information contained therein must be factually accurate. The physical location of an advertisement dictates which government authority will deal with it under the Advertising Law. For example, the Qatar Civil Aviation Authority deals with the placement of advertisements in airports or airport facilities, while the Qatar Media Corporation is responsible for advertisements made by audio or video mass communication channels. A violation of the Advertising Law may attract fines of up to roughly $5,000. In addition, the courts may order the removal of the offending advertisement. Electronic Commerce and Transactions Law The Electronic Commerce and Transactions Law applies to transactions conducted through electronic communications. A ‘transaction’ is defined as “any deal, contract or agreement concluded or performed, in whole or in part, through electronic communications”. From this definition, it is arguable that where an advertisement appears in an electronic medium (eg, the Internet) and communicates to consumers a product or service offering (eg, “[B]uy X for this problem – it’s better than Y!”), the advertisement could be subject to the Electronic Commerce and Transactions Law, over and above regulation by other laws. According to relevant law, any electronic communication which constitutes or forms part of an electronic commercial service and which is provided by a service provider (as defined) must not be contrary to public morals. As is outlined, both unfair and comparative advertising may be considered as such, thus exposing these practices to the Electronic Commerce and Transactions Law. The Grievances and Dispute Settlement Committee of the Supreme Council of Information and Communication Technology of Qatar (ICTQ) is empowered to hear and decide on any dispute initiated under the Electronic Commerce and Transactions Law, and complaints may be filed online. The ICTQ may impose appropriate penalties and its decisions are appealable to the courts. Press and Publication Law The Press and Publication Law provides that no matter published in the press may “contradict with the ethics or imply offense to the public morals”. However, as can be seen below, it is possible that comparative and unfair advertising may be considered to be contrary to public morals. Advertisements contrary to public morals The Qur’an contains a business ethic which closely resembles the basic secular tenet of free-market competition that traders should compete on their own merits, and not those of others. It states that “[a] man’s work with his hands” is the best form of trade (Ahmad, 1576). Therefore, it would appear that the Qatari courts will ultimately have to set the country’s own boundaries for comparative advertising according to this fundamental principle. While it is clear that any misleading or false advertisement will be considered to be contrary to public morals, it is harder to say whether the same will ring true for ‘clean’ comparative advertisements (ie, those without any deceptive elements). Of course, not all comparative advertisements are alike: some will be closer to what is socioeconomically unacceptable than others. Perhaps the Qatari courts will seek guidance from the EU directive, which allows such advertising where it: • is not misleading; • compares like with like in terms of goods and services (ie, meeting the same needs or intended for the same purpose); • objectively compares important features of the products or services concerned; • does not discredit trademarks; and • does not create confusion among traders. Telecommunications Law In Qatar, all content broadcast through television and radio (including cellular networks) is subject to the Telecommunications Law and its bylaws. The law provides that licensed telecommunications service providers may not make any false or misleading claims or suggestions regarding the “availability, price or quality” of their telecommunications services or equipment, or the telecommunications services or equipment of another service provider. Any unfair or false and misleading comparative advertisement by a telecommunications company operating in Qatar would contravene this provision of the Telecommunications Law. The General Secretariat of the ICTQ has broad powers to deal with such contraventions. Commercial Code The Commercial Code contains provisions which are directly applicable to unfair and comparative advertisements: traders may not resort to “fraud and cheating” to sell their goods, and may not publish information that could “harm a competitor’s interest”. Furthermore, a trader may not “disseminate false information or matters about the source of [the] merchandise or description, or the scale thereof”. Trademark Law Where unfair or comparative advertisements refer to third-party trademarks, in addition to the above laws, it may be possible to apply the provisions of the Trademark Law which deal with potential trademark infringement. The relevant law states that registered and unregistered trademarks are infringed where a third party “uses [them] in connection with his goods or services” and where “any person… knowingly sells or offers for sale or distributes, or holds for the purpose of sale… goods bearing a counterfeit, imitated or wrongfully affixed or used… registered [or unregistered] mark[s]”. These provisions create murky waters for an advertiser which uses a third-party trademark without the owner’s permission in relation to its own goods or services in any given context, including in unfair or comparative advertisements. Comment Qatari law contains numerous provisions which might concurrently or conjunctively give rise to a cause of action where unfair and comparative advertisements appear in Qatar. The content of the advertisement, its location and its mode of dissemination will determine which laws can be relied on to prevent or remove such advertisements, but it is unclear whether they are legally sound. Of course, unfair advertising should be avoided at all costs; but where advertisers do run comparative advertisements, they should at least ensure that the advertisements would pass muster in jurisdictions with more developed advertising laws, such as the European Union. WTR
