INTERNATIONAL LEAGUE FOR COMPETITION LAW (LIDC)
National Report Norway
Question n° 3: "How can one ensure the effective respect of the rules of fair competition in respect of electronic commerce?"
By Amund Grimstad (Section I and II) and
Larissa Falkenberg Kosanovic (Section III),
Bull & Co ANS, Oslo
I. Introduction
The following report is based on the questionnaire prepared by the International Rapporteur. Further the report deals only with Norwegian legislation, primarily Act No. 47 of 16. June 1972 relating to the Control of Marketing and Contract Terms and Conditions (Abbr.: MFL). An English translation of Chapter I of the Act, regarding "Control of Marketing", is enclosed, (Encl. 1).
Due to both common legal traditions and also a certain amount of joint procedures in preparing legislation, an outsider will probably find that there is a great deal of legal conformity between the Nordic nations. The following report may possibly be regarded as relevant even regarding Denmark, Sweden and to a certain extent, Finland.
In this context it should also be mentioned that the Nordic Consumer Ombudsmen (of Finland, Sweden, Denmark and Norway) in January 1999 published a document "Common Position to Trade and Marketing on the Internet and similar Systems of Communications". Unfortunately this document is only available in the Nordic languages. The Norwegian version is enclosed as Enclosure 2, with an English summary as Enclosure 3 (please note that this is not an official translation).
Information on the Norwegian Consumer Ombudsman and the "Marketing Act" can also be found on the Internet, even with an English introduction, on www.forbrukerombudet.no.
Restrictions on marketing and advertising in Norway are probably among the strictest in the world. Aside from the general regulations in the Marketing Act (MFL), Norway also has a total ban on advertising tobacco and alcoholic beverages (i.e. beverages with an alcoholic content above 2.50 % vol.). Further we have restrictions on marketing and advertising on TV directed towards children. This has the implication that advertising which is perfectly legal in other countries may be illegal in Norway. This obviously creates a legal enforcement problem in dealing with marketing and advertising to the Norwegian market, originating in other countries (Internet, international television and radio broadcasting via satellite, international newspapers and magazines distributed in Norway etc.).
Even if Norway is not part of the EU as a member state, our "affiliation" with the EU through the EEA Treaty, will for all practical purposes make EU legislation valid in Norway, through implementation into Norwegian law.
II. Questions of material competition law
1. The use of e-mail for advertisement: ("spamming")
a) Is there any obligation to mark e-mail advertisements as such?
An obligation may probably be interpreted from MFL Section 1 (see encl. 1): "…. in conflict with good marketing practice". Mailing advertisements to firms or persons without their consent and even without marking it as an advertisement would probably be regarded as a violation of MFL Section 1, (cfr also Article 12 of the ICC International Code of Adverticing Practice and Section 8 of the Nordic CO's Common Position).
b) Is it allowed to send advertisements via e-mail with the consent of the addessee?
Yes, at present there is no clear legal restrictions prohibiting advertisements without consent by e-mail. The Nordic CO's Common Position states that "marketing via e-mail should only take place with the consumer's consent", but there is no clear legal position on that issue. The CO may regard unsolicited e-mail as a violation of MFL Section 1: - as an act "which is unfair in relation to consumers", but there is no court decisions supporting this. (Cases concerning interpretation of MFL is mainly tried before a specialised court, "The Marketing Council" - no case concerning the question has been tried as yet). Unsolicited advertisement by ordinary (postal) mail is allowed, and it is not obvious that the law should be interpreted differently regarding e-mail.
c) Which effect has the clear opposition of the user on the legality of spam mails?
That would depend on the form of that opposition. A consumer who is "spammed" might try a complaint to the Consumer Ombudsman, who probably would ask the advertiser to stop his practice of sending mail advertisements without consent, provided the advertiser is based on Norwegian territory. But whether the MFL gives the CO the authority to forbid the "spamming" practice is still unclear.
Spamming at a larger scale can also be valid grounds of complaint to the access provider, who probably can suspend the advertiser from Internet access through the provider, unless his spamming practice is corrected. This will, however, be based on the access providers conditions of business and policy, and not on statutory law.
d) Can access providers restrict the use of spams, i.e. by refusing to transfer these mails to the addressee?
Yes, probably, provided that their contract with the customer allows this kind of restrictions. To our knowledge, most Internet access providers have reserved by contract the right to exclude customers from further access if they are abusing. Whether this can be done as a selective restriction is a technical question outside the scope of this report.
e) How is the legal situation affected by the fact that the e-mail has been sent from abroad?
In Norway it is an established practice that the Act (MFL) is applicable on all marketing directed towards the Norwegian market. Advertising through e-mail to a Norwegian addressee is obviously "the Norwegian Market", and as such subject to the Act. Enforcement of the Act may be more complicated against a foreign advertiser, than against advertisers that are located within the territory of Norway. It is, however, possible to enforce the Act against an "accessory" - as was recently done in the Market Council, when a prohibition order was issued against the Norwegian subsidiary on behalf of an Italian company violating Section 1 of the MFL through an international marketing campaign.
f) Are users allowed to send flame mails to the spamming company?
Again there is probably no legal restrictions. Most Internet access providers will, however, by contract have the right to forbid "flame mails" under the threat of suspension of Internet connection, even if the flaming may seem morally justified.
2. The use of hyperlinks
a) Is it lawful to set hyperlinks to websites of competitors?
The short answer is yes.
The context in which the hyperlink is set may, if this is part of a comparative advertisement, violate the MFL if the comparison as such is in violation of the act. If the hyperlink is used in any context to degrade, humiliate or ridicule the competitor, this will probably violate Section 1 of the MFL: "..in conflict with good business practice….".
b) Which effect has an express statement of the competitor prohibiting or restricting hyperlinks to his homepage?
Probably none. There are no statutory law regulating the use of hyperlinks. Norwegian Copyright law does not apply.
If, as mentioned under a) above, the hyperlink is used in a context that is in itself a violation of the MFL, the offended party may file a complaint with the court, claiming that there is a violation and even sue for damages.
c) Are hyperlinks supposed to refer to the main homepage?
No legal requirement. May be subject to what is popularly known as "netiquette", i.e. the unwritten rules of proper behaviour on the Internet, but probably not an enforceable rule.
d) Are there legal restrictions as to inline linking?
Same answer as under c) above. If inline linking is done as part of advertising, it may be in violation of Section 2 of the MFL concerning "Misleading Business Methods", see Encl. 1.
3 Limitations for online marketing of specific products
a) Are there any restrictions for the online marketing of tobacco products?
All marketing/advertising of tobacco products is prohibited in Norway through statutory law, the Act of March 9, 1973 No 14, Section 2 states that any kind or form of advertisement for tobacco products is illegal. The use of Internet as media will not affect this. The enforcement of this act is strict, and any marketing directed towards the Norwegian market will probably be stopped if enforcement is possible.
International advertising in general, i.e. not dedicated to the Norwegian market, is not subject to the prohibitive regulation, as long as the marketing media is not specifically intended for the Norwegian market only. Distribution of international media, magazines, newspapers etc. with tobacco advertisements is allowed. Correpondingly, online advertising on a foreign company's homepage in English cannot be stopped even if it is possible to read it in Norway. If the company, however, chose to include a special page in Norwegian for the benefit of Norwegian readers, that would probably be regarded as a violation.
b) Are there any restrictions for the online marketing of alcohol?
The same answer as under a) applies. The statutory law is given by the Act of June 2, 1989 No 27, Section 9-2, which states that all advertising of alcoholic beverages is prohibited. (Alcoholic beverages defined as a beverage containing above 2.50 % vol.)
c) Are there any restrictions for the online marketing of medical products?
All marketing/advertising of medical products in Norway is subject to regulations and restrictions laid down in the Act of Dec 4, 1992 No 132, Chapter VII. Aside from regulating how you are allowed to advertise medical products, these regulations also restricts the advertising of products that are not approved by health authorities as medical products. Those products must not be advertised in a manner or by statements that are likely to give the public the opinion that the product has effect on illness, symptoms of illness or pain, or has any effect on physiological functions in humans or animals. I see no reason why those regulations should not apply to online marketing as well, with the same limitations as mentioned under 3 a) and b) above, i.e. marketing directed at the Norwegian market will be subject to the regulations.
d) Are there any specific restrictions for the online marketing of other products?
There are no specific restrictions concerning online marketing as such, but marketing of certain goods or services may be restricted, regardless of the marketing/advertising media.
For instance, it is prohibited to advertise for sale equipment for producing or distilling alcohol ("moonshine production"). Further there are regulations concerning what kind of information which should be given as a minimum in advertising certain products and services in the financial trade (banks, insurance companies etc).
4 Limitations for online marketing to specific persons
a) Are there any restrictions for the online marketing as to minors?
There are no specific rules or regulations concerning minors in the MFL, but the Norwegian Consumer Ombudsman with the approval of the Marketing Council, has adopted a strict practice in evaluating any marketing directed at minors. The term " unfair in relation to consumers" in MFL Section 1 is adapted and applied with certain concern for the immaturity of children and their ability to evaluate the marketing.
The Act concerning broadcasting by radio and television in Norway has specific regulations on marketing/advertising to minors. This Act is not at present directly applicable on online marketing, but the Consumer Ombudsman may regard the Broadcasting Act as a standard for the interpretation of the MFL, concerning online marketing to minors. See also the enclosed summary of the Nordic CO's common position, Encl. 3.
b) Are there specific restrictions for lawyers, doctors or dentists which are interested in using the internet for the dissemination of commercial information on their services?
No legal restrictions. The ethic codes of the professions used to have restrictions on the marketing practices, but those codes has been deemed illegal by the Competition authorities, as restrictive to competition, and has been changed in the later years. Probably there is still a certain reluctance within these professions to advertise, but at present there are no restrictions.
c) Are there other regulations which are aimed at or have the effect of restricting the online marketing for specific persons?
To our knowledge, none.
5. To which extent are there any information duties with regard to commercial websites?
a) as to prices
There are no specific regulations concerning online marketing or websites. The MFL will of course cover any commercial marketing regardless of the media. This means that MFL sections 2 and 3 will apply, stating the obligation to give information, even on prices, that are not "misleading" (Section 2) or gives "insufficient guidance etc". This does not imply that you have to give information on prices in advertisements in general, but if you do, your information should be in compliance with Sections 2 and 3 of the MFL. The Norwegian Consumer Ombudsman has also published a guide to the use of price information in marketing/advertising which shows the current interpretation of the act according to the Market Council and the practice of the CO office.
b) as to taxation
Again the same regulations, MFL Sections 2 and 3, will apply. If information on prices is given in advertisements directed at the (private) consumers, it should, according to the CO, always include information on taxes (VAT) - and any other expenses which may be added to the purchasing price.