Differentiating in online prices in principle allowed

In its decision of 18 February 2020, the Court of Appeal of Arnhem-Leeuwarden decided that Brinkhof client Media-Concept is in principle allowed to use different pricing on different online locations. As in first instance, all claims of competitor Digital Revolution were denied.

Media-Concept operates the office supplies brand Prindo, which also advertises via Google Shopping. Competitor and Dutch market leader Digital Revolution, operating under 123inkt, sued Media-Concept for misleading advertising, unlawful comparitive advertising and unfair commercial practices. Digital Revolution claimed that the consumer would be misled as the prices shown via Google Shopping were lower than the prices shown when the website of Media-Concept was visited directly.

Like the court in first instance, the Court of Appeal fully sided with Media-Concept, ruling that Media-Concept made clear on its website what the pricing conditions were – both when visited via Google Shopping as well as directly. The average Dutch consumer should be considered price-oriented, so it would likely notice differences in pricing. When confronted with additional pricing conditions, the average consumer would be able to still decide whether or not it wanted to purchase the product. There is no misleading.

The Court of Appeal also noted that there is no obligation for advertisers to inform the consumer what purchase routing would lead to their lowest price.

This is an important decision for advertisers, as it can put their minds more at ease: advertisers in the Netherlands can in principle use different pricing levels for different websites, as long as the information and conditions on each website are clear. It will also be comforting to know that, based on this decision, advertisers do not need to show Dutch consumers the way to the cheapest pricing.

Media-Concept was represented by Rutger Stoop and Darya Bondarchuk.