Regelung der irreführenden Internetwerbung im japanischen Verbraucherrecht
Abstract
The contribution explores the Japanese rules of consumer protection regarding advertisements, the need for which has increased in the age of digitalization due to, i.a., the greater possibility to manipulate information. Misleading advertisements harbour the risk of a contract being concluded on the basis of the consumer having been misled. Moreover, there is a risk of misleading information on goods or services being distributed by third parties, which leads to the question of whether such information ought to be ascribed to a businessperson.
The rules that are described encompass ex-ante and ex-post regulations to avert or remedy the damage incurred by the consumer. The former are found in particular in the Japanese Antimonopoly Act, the Act against Unjustifiable Premiums and Misleading Representations, and the Act on Specified Commercial Transactions. Positive provisions under the latter two Acts prohibit misleading statements with regard to the quality or other facts in advertisements, if these lead to the belief that the product or service in question is exceptionally good. Negative provisions under the Commercial Transactions Act and other special legislation prescribe that particular information be provided to the consumer by the businesspersons. These rules are enforced through the Japanese administrative offices, in particular the consumer agency, which may order measures, such as an injunction, or monetary fines, and may even prevent the merchant from continuing their business. Moreover, consumer associations can claim injunctive relief.
In cases of ex-post relief of damage, the general private law rules on fraud and mistakes under Arts. 95–96 Civil Code are applied. The reform of the Minpō that is to come into effect as of 1 April 2020 is discussed in this context, as mistake is one area that is affected. In future, mistakes as to the declaration are differentiated from those based on the motive, although the consequence is the same: the consumer may rescind the contract. The rules found in the Japanese Consumer Contracts Act, which similarly allow a contract to be rescinded on the ground of the consumer having been misled, are also discussed. Particular attention is given to the requirement that the businessperson’s action was for the purpose of soliciting a contract and how this requirement has been interpreted. On the other hand, the information duties of the Consumer Contracts Act are a mere obligation to make an endeavour to inform, so that a consumer cannot rescind a contract if the information was not provided accordingly. This approach has been maintained even after the reform of the Consumer Contracts Act. Finally, the measures for enforcement found in private law, namely individual and collective claims for damages, are set out briefly.
(The Editors)
