The Argentine Civil Court of Appeals, Room E, has recently issued a decision in the case “Servicios y Productos para Bebidas Refrescantes SRL y otros c/ Aguas Danone de Argentina SA y Euro RSCG SA”, which addresses a complaint of unfair competition arising from an alleged smear campaign, which included the use of marketing practices such as the mass sending of e-mails with defamatory content.
In their prosecution in court, the plaintiffs claimed that Aguas Danone de Argentina S.A. and its advertising agency, Euro RSCG SA, orchestrated a smear campaign against The Coca-Cola Company’s product “Dasani”. According to them, such campaign consisted in the dissemination of e-mails with false and defamatory information, including statements about the alleged presence of carcinogenic substances, with the purpose of discrediting the brand and damaging its commercial performance.
In their arguments, the plaintiffs pointed out that shortly after the product was approved by the Provincial Registry of Food Products and launched on the market, an e-mail with a suggestive title questioning the quality of the water marketed began to circulate on the Internet, stating that the product was tap water to which certain carcinogenic chemical substances were added and that it had been withdrawn from the European market due to the intervention of the regulatory authorities.
In this context, the plaintiffs argued that the campaign was organized by Aguas Danone de Argentina S.A., the company with the largest share in the bottled water market. According to their accusation, said company would have commissioned an advertising agency to execute a “viral marketing” strategy, a fact that was later confirmed by the testimony of a former employee of the agency involved.
Thus, the plaintiffs demanded compensation for the damages derived from the loss of prestige, as well as the publication of the court decision in newspapers of wide national circulation.
On their part, the defendant companies denied the facts described in the complaint, objected the plaintiffs’ standing to sue and asserted that there was no concrete and sufficient evidence to support the accusation.
The first instance court analyzed the testimonies, documentation and expert opinions offered in the case, however it determined that the evidence provided failed to reliably link the defamatory e-mails with the defendant companies, thus rejecting the lawsuit filed.
However, the plaintiffs appealed this ruling, arguing that key testimonies and documents had not been adequately considered to prove the defendants’ involvement.
Finally, the Court of Appeals ratified the decision of the lower court, emphasizing the lack of a direct causal relationship between the actions attributed and the alleged pecuniary loss.
Among the arguments provided by the Court, the lack of concrete evidence that would allow assigning liability to the defendants was highlighted, given that the testimonies of former employees of Euro RSCG were considered insufficient to prove the defamation campaign, as well as the fact that the accounting expert did not find billing evidence suggesting the execution of a viral marketing campaign against Dasani.
This resolution of the Argentine Civil Court of Appeals highlights the importance of supporting unfair competition and defamation litigation with solid evidence.
