Consumer Remedies for Misleading or Deceptive Marketing Practices: Reform of the Law in Hong Kong

Abstract

This paper aims to set out theoretical justifications for legislative reform in Hong Kong to protect consumers from misleading or deceptive marketing practices and to provide the outlines of a theoretical framework to delineate the proper scope of such protection. The Hong Kong Consumer Council has recently put forward proposals recommending a general statutory prohibition on unfair marketing practices, including misleading or deceptive acts or omissions, giving consumers the right to seek remedies for losses suffered therefrom. It is argued in this paper that such a statutory provision is justified through an examination of the rationales for regulation. This paper seeks to adopt a theory of corrective justice to provide the basic rationale for consumer protection from misleading marketing practices. Other justifications can also be important, including economic theories, but it is argued that ethical concerns derived from the concept of corrective justice best explain the need for protection of consumers. The theoretical justifications for consumer protection are important not only for supporting the argument for law reform in Hong Kong, but also in ascertaining the proper scope of any new statutory provisions. Accordingly this paper also examines the potential reach of a general statutory prohibition on misleading marketing practices, with reference in particular to the concept of ‘misleading or deceptive conduct’ adopted under the Australian Trade Practices Act 1974, s. 52 and in Hong Kong under the existing prohibition in the Telecommunications Ordinance, s. 7M. The width of such a statutory prohibition of misleading or deceptive conduct compared with common law concepts of misrepresentation is analysed and justified through the lens of the theories for consumer protection. In addition, the question of the appropriate standard for measuring whether conduct is misleading is highlighted and assessed as an example of a particular issue that would need to be resolved in any reform of the law in Hong Kong.