Czech Republic: Consumer Tests before Constitutional Court
In its decision from the beginning of March 2018, the Constitutional Court of the Czech Republic dismissed a constitutional complaint filed by Karlovarské minerální vody, a.s. (hereinafter „KMV“), a well-known producer of mineral water, against decisions of ordinary courts. In its ruling, the Constitutional Court focused mainly on the mutual interaction between the right to protection of reputation (of the producer) and the right to express justified criticism and its possible limitations. The Constitutional Court pointed out that there are differences between consumer testing and commercial campaigns. In its decision, the Constitutional Court supported consumer organizations in their right to conduct tests of various consumer products and publish their results.
The facts of the case were as follows: At the end of 2009, dTest magazine published an article presenting results of a consumer test named „Do you really know what you drink?“. The test compared almost 20 brands of still bottled water, including infant, natural and mineral water. The test measured the content of microorganisms, desirable and undesirable substances and substances presenting health hazard in the water. The article also contained a table comparing the levels of different substances measured by the State Health Institute. The article labelled one type of bottled drinking water produced by KMV with a black triangle, which meant „increased or high level of sodium“, and published the actual levels of sodium in this water. dTest also published a description of each of the water samples tested. Besides the increased content of sodium, the tested KMV sample also contained prohibited organic particles (benzo(ghi)perylene and trihalomethane), which was mentioned in a negative context in the description of the sample. In addition, dTest published possible explanations of how such particles could have contaminated the water. Another interesting aspect of the case is that the tested water was marketed by KMV as containing „only 0,002 % sodium“. Such information is apparently able to raise expectations in consumers that its content of sodium will be (relatively) low. The truth was that the KMV sample had the second highest content of sodium (which was three times higher than the average of all the other samples).
KMV did not appreciate the published results and filed a lawsuit against dTest with the Municipal Court in Prague to start a dispute which, in certain circles, became known as the „black triangle case“. KMV demanded, among other things, that dTest shall apologize for the use of the black triangle, because the content of sodium in its sample did not exceed limits set by applicable legislation. dTest refused to do so and based its defence on an argument that tests conducted by consumer organizations are different from inspections conducted by regulatory bodies, who merely analyse compliance with laws or regulations. On the other hand, tests conducted by consumer organizations compare different products in order to keep consumers informed and their findings often go beyond legal requirements. Moreover, dTest provides an interpretation of the results of its tests so that, unlike state test protocols, its tests are understandable to the magazine’s average reader. dTest further insisted that if it lost the opportunity to evaluate and interpret the results of its tests, it would not be able to present anything but (basically incomprehensible) test protocols. It would not be possible to compare products with each other and to interpret test results, which help consumers to make informed purchase decisions.
The Municipal Court partly upheld the claim and ordered dTest to apologize for the use of the black triangle symbol. dTest appealed the judgment. The High Court in Prague, which served as the appellate court in the case, reversed the judgement of the Municipal Court in Prague and dismissed the claim. It emphasized that dTest’s right to exercise free speech and spread information stood against the alleged infringement of KMV’s reputation. Referring to the existing case law, it ruled that even publication of untrue information does not always result in unjustified infringement of a legal entity’s reputation unless a certain level of intensity is exceeded. Moreover, in the case at hand, the published quality indicators and the measured levels of content were largely true. The purpose of the text was not to harm KMV’s products and the article did not go beyond justified criticism.
Following KMV‘s application for extraordinary appeal, the case was referred to the Supreme Court, which however rejected the application. KMV therefore filed a constitutional complaint with the Constitutional Court of the Czech Republic.
The Constitutional Court did not uphold the complaint either. It stated that critical addresses made by consumer rights organization cannot be compared to other expressions of public criticism which might have defaming potential. The article published by dTest does contain certain elements of commercial speech, however, its purpose is not competitive or promotional, but rather the opposite. According to the Constitutional Court, the purpose of the article was to protect consumers by warning them against undesirable properties of certain products. Consumer protection as protection of the weaker party in the seller-buyer/producer relationship requires differently targeted criteria than protection of consumers from advertising. One such criterion shall be a reasonable discussion of the relation between the quality of the product and protection of public health. The second criterion shall consist in an appropriate level of professionalism with which the testing and evaluation of the products are conducted; evaluation tools shall be carefully selected and the evaluation shall not contain apparent overstatements, highly expressive terms or even hidden or apparent manipulations which could harm the seller or the producer. According to the Constitutional Court, critical speech is protected by the constitution as it is an appropriate tool to achieve the intended goal of consumer protection; consumer protection is a socially approved legitimate goal if carried out by a subject foreseen by the law. The Constitutional Court thereby basically confirmed the ruling of the High Court in Prague which found that there was no inappropriate excess on the part of dTest. The scale of evaluation of the products and graphic symbols used as a warning (black triangle and red text) do qualify, if used appropriately, as reasonable evaluating expressions.
The Constitutional Court emphasized that it in no way assessed the quality of the product concerned. Its decision focused solely on the contents of consumer testing carried out by dTest. The Court concluded that the test carried out by dTest did have certain flaws, theses flaws were however not critical and therefore, the Court supported dTest’s position in the dispute.