Average addressee: misleading, deceptive or false. But for whom?
The Unfair Competition Act (UWG) prohibits deceptive, misleading or incorrect advertising. So far, so good. But who is the ominous average addressee that the Swiss Commission on Fair Trading (SLK) constantly refers to?
The law states that anyone who makes incorrect or misleading statements about themselves and their company is acting unfairly (Art. 3 para. 1 lit. b UWG). Such a breach of the law can be prosecuted under both civil and criminal law. The so-called "average addressee" is decisive in the assessment of an advertising subject by the courts or the Fair Trading Commission. In German, the SLK's principles state: "The understanding of the relevant target group must be taken into account when assessing a commercial communication." Contrary to the widespread opinion in marketing departments and agencies, what the client had in mind is irrelevant.
The ominous average addressee
In case law and in the practice of the Commission on Fair Trading, the average addressee is a private or professional person with average understanding and information. According to the Federal Supreme Court, each judge is completely free to decide who he defines as the average addressee and how he interprets his understanding. Courts such as the SLK therefore enjoy a great deal of leeway.
An illustrative case on the topic of the average addressee from recent SLK case law is Decision No. 182/17 of the Third Chamber of January 24, 2018 on advertising for consumer loans with the claim "There is always a solution". You can find it at Fair-advertising.ch in the "Decisions" area.
Marc Schwenninger
