The Study To Liability Of False Advertising

Freedom of advertising, as a kind of freedom of speech, is protected by constitution since it is very important for the public accessing to information. But the spread of false advertising has undermined the rights and interests of the public. As a result, it is necessary for civil-law to intervene.The premise of civil-law'intervention in false advertising is well-defined concept of false advertising and well- established standards for judgment. In accordance with the needs of modern society of consumption and information, the various legislations of states and areas define the "misleading" as the only essential character of false advertising in favor of the public.Modern civil-law is gradually moving to recognize advertising's legal effects. Modern civil-law established two kinds of remedies for false advertising: contract duty and tort liability. Originally, advertiser is the only legal subject to be responsible for the advertisement. Nowadays, advertiser, business, promulgator and endorser of advertising should take responsibility for false advertising in modern civil-law, which consists with the common behavior of most modern advertising.Modern civil-law prescribes advertising contractual duty by regarding advertising as an offer or a warranty; contrarily, traditional civil-law thinks that advertising was invitation of offer. Due to extensive audience of advertising, the modern contract law breaks the privity of contract and expands its scope of protection. There is tort liability in traditional civil-law when the false advertising constitutes deceit. After the prohibition against false advertising in consumer law, tort law adopted new rules aimed to protect others in false advertising. The recent legislations of false advertising in states or areas are more different. Except general consumer, some provisions expand to protect the public; the advertiser has to bear the responsibility to prove the truth of advertising; meanwhile, assumption of the advertisers'fault has been adopted. In addition, some provisions also definitely set the joint and several liabilities.Both contract duty and tort liability are designed to recovering the damage of the public for false advertising in modern civil-law, but the pros and cons of them are different. The former is more convenient but restricted by the privity of contract. There is more trouble in recovering the damage for the public through the latter, but it could be improved by changing the constitute of tort lialibity of false advertising.