Problem
It seems to be a typical situation. One blogger orders services from another blogger (in this particular situation, the Giveaway organization). But it was not typical when the injured party went to court.
Process
We appealed to the Commercial Court of Kyiv city and the first instance upheld our position, recognizing the breach of contract and collecting a fine of UAH 250,000 from the contractor.
The court of appeal refuted the violation. It recognized the transaction between the parties as an agreement for the provision of advertising services and therefore was guided by the Supreme Court’s practice in the category of advertising disputes.
This practice stipulates that no specific result can be expected from advertising services (the advertiser is responsible for informing consumers about the product and is not responsible for the consumers’ decision to purchase the product). Therefore, the court ruled that the contractor could not guarantee that the figure of 50 thousand subscribers would be reached, and therefore released the contractor from liability.
Appeal to the Supreme Court
Next, we appealed to the Supreme Court. And at this final stage, the lawyers managed to prove to the court the need for a broader perception of the existing legal relations.
As a result, the Supreme Court moved away from the standardized understanding of advertising and understood the specific features of digital marketing.
In particular, the court noted that a giveaway is not advertising, but a commercial competition where end users (sponsors) pay money to get a result – a specified number of subscribers to their own accounts. And if this number is not reached, the obligations to the sponsors are not fulfilled, the giveaway is disrupted, and negative consequences ensue.
Therefore, a giveaway cannot be limited to advertising alone, because it is a multifaceted process.
The Outcome
Thus, the Supreme Court upheld the position of ASA Group, noting that by its legal nature, the transaction concluded by the parties contains elements of various contracts – both for the provision of services (advertising) and for the performance of work (achievement of results and conducting a giveaway).
Therefore, taking into account the principles of freedom and binding nature of the contract, the circumstances of non-fulfillment of the contract are established and confirmed.
Result for the Client
Thanks to ASA Group’s strategic legal approach, the Supreme Court ruled in favor of Veronika Sinytsia, ensuring that the multi-dimensional nature of digital marketing and giveaways was acknowledged in the legal context. This decision helped clarify the legal treatment of digital marketing agreements and established an important precedent for future cases involving similar commercial activities.
