Consumer Protection Act Article 3: Protection against discriminatory marketing: Part 2

In our previous article, we discussed the consumer’s right to equality in the consumer market, or better put, the protection against discriminatory marketing.

In this article we shall continue this discussion but specifically when differential treatment is allowed, special needs, the legal consequences of discrimination in relation to the Act and how a court will approach discrimination in regards to marketing.

What are reasonable grounds for differential treatment in marketing?

A service provider may refuse to supply or provide access to any goods or services on the following basis:

1. If the consumer is an unemancipated minor, or if consent is required of a parent, guardian, or other major before supplying or providing access to any goods or services in accordance with any law or to protect the safety, health or wellbeing of the minor;

2. The offering of any service or facility for the exclusive use of minors or of a specific age group or between specified ages for majors older than 60 or to advertise or offer any goods or services at a discounted price to members of those groups.

What are special needs cases?

In a reasonable manner, a supplier may provide and designate separate facilities for the use of persons of each gender or for persons of a single gender. Furthermore, and still, in a reasonable manner, a supplier may target the marketing of any goods or services at a particular group if the goods or services are intended or designed to fulfil specific needs or interests that are common to that group of consumers.

Suppliers should however be warned against stereotyping consumers and be mindful of the sensitivities of their consumers.

What are the legal consequences of discriminatory marketing?

Should a supplier discriminate unfairly in regards to marketing recourse may be had to the Equality Court. This would be in terms of the Promotion of Equality and the Prevention of Unfair Discrimination Act.

How does the court approach unfair discrimination?

In instances where a consumer has alleged that a supplier has unfairly discriminated against a person or class of persons and proves differential treatment between consumers, the court may raise a presumption that unfair discrimination has taken place. What this means is that the supplier will be placed in the position that it must prove that the differential treatment was reasonable or justifiable.

It may be held that this provision may contradict the Constitution, presumption of innocence, silence and not to be obliged to testify. This however remains to be decided.

In our next article, we consider what information must be disclosed to a consumer to make an informed decision before entering into a transaction for goods or services.