Ett vilseledande köp - En rättsdogmatisk undersökning av användandet av begreppet ”köp” vid marknadsföring av digital media

Sammanfattning

As the internet has developed, Swedes’ media consumption has shifted from physical media to digital media. When marketing digital products, businesses use the word "buy" to signal that the consumer can acquire the product. Despite the use of the word "buy", the consumer does not acquire ownership of the product. Instead, a non-exclusive, non-transferable, limited license for private use is obtained. The consequence of this is that the consumer does not have access to their purchased product and the product can disappear at any time. The essay therefore aims to investigate whether the use of the term "buy" in the marketing of digital products is misleading according to the Marketing Act (marknadsföringslagen) and whether user agreements have any impact on that assessment. The Marketing Act applies to both traditional and digital marketing. This means that marketing on the internet is not treated any differently compared to traditional marketing. When investigating whether a marketing measure is misleading, the starting point is how the average consumer perceives the marketing. The average consumer is a hypothetical assessment of how an average recipient, in the target group that the marketing is aimed at, perceives the advertisement. In the essay, my assessment is that the average consumer will perceive the use of “buy” in marketing as meaning that the acquisition entails ownership of the product. Misleading marketing refers to when a business uses incorrect claims or misleading representations. Correct information can thus be misleading when it suggests something that gives the recipient the wrong impression. The concept of misuse of terminology is used to describe marketing that uses words in a way that the average consumer is not familiar with, something which can constitute misleading marketing. Omission of essential information can also be considered misleading. I believe that the use of the word "buy" is a clear example of misuse of terminology. The common perception of the word carries with it a transfer of ownership after the transaction, which does not occur when purchasing digital media. I also believe that the lack of information that the purchase only involves a license and not ownership constitutes a misleading omission. The transaction test is used to examine whether the misleading marketing has an actual or probable impact on the recipient's business decision. I believe that the marketing actions that the essay investigates are of such a nature that they, at least likely, affect the consumer's ability to make an informed business decision. I believe that the fact that some of the marketing measures contain references to the user agreement is not sufficient for the marketing not to be considered misleading. 5 My conclusion is therefore that the various marketing measures should be considered misleading. In my opinion, the problem is not that there are licensing agreements when selling media, but that consumers do not know about this, and even if they are informed about it, it is not clear that the license does not entail any ownership rights. The big problem is not really whether the measures are misleading or not, but that it is currently unclear whether this is the case. Ultimately, I believe that this should not be allowed to continue and that something must be done to change this uncertainty.