Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 8 Unfair Commercial Practices Directive, Chapter 2, Section 2, Article 9

(1) It is against the requirement of professional diligence for a telecom provider to fail to take steps to prevent consumers from incurring telecom costs due to surreptitious "diallers" installed on their computers, when the telecom provider is aware of this issue. 

(2) It is against the requirement of professional diligence for a telecom provider to request immediate payment in full (and threatening subscribers that in the event they failed to pay, their telephone line would be cut off) of the costs incurred through the "diallers".

(3) It is an unfair commercial practice for the owner or assignee of a satellite or non-geographic number for not preventing the unfair use by third parties of their number.

Further to several consumer complaints concerning the unjustified charge by Telecom Italia S.p.A. (the Italian incumbent provider for telecommunication services) of telephone calls and/or internet connections to satellite numbers managed by Elsacom S.p.A. and premium rate non-geographic numbers (such as 199, 178, 899, 892)  which the consumers claimed they had not made, the Italian Competition Authority initiated on 7 February 2008 investigation proceedings against Telecom  Italia, Elsacom and  the owners of non-geographic numbers involved (CSINFO S.p.A., Eutelia S.p.A., Karupa S.p.A., Voiceplus S.r.l. and Teleunit S.p.A.).

On 7 May 2008 the Italian Competition Authority decided to extend the investigation proceedings to the following companies: Drin TV S.r.l., AbcTrade S.r.l., Telegest Italia S.r.l., Aurora Uno Sro, OT&T S.r.l. Ivory Network Limited, and PLUS Production film di Lucci Andrea, in their quality of assignees companies for the involved satellite and non-geographic numbers.

The Authority deemed it appropriate to adopt interim measures, and ordered Telecom Italia to cease the practice of cutting off the telephone lines of customers for non-payment of the such calls.

The investigation conducted by the Italian Competition Authority ascertained that the billing of these calls was the result of companies other than Telecom Italia having installed diallers on the subscriber hardware, without their knowledge, while they were surfing the Internet. (Note: diallers are programmes managed by small companies, and used as a means of gaining access to premium rate services or services using premium rate call charges, which can also automatically re-programme the subscribers computers when used later to access the Internet, as a result of which calls are made without being specifically requested by the user.)

As the practice had been carried out by using telephone and internet, the opinion of the Italian Communication Authority was requested on 16 September 2008.

 

The Italian Competition Authority decided that the conduct constitutes an aggressive commercial practice according to Article 8 and 9 of the UCP Directive, and that the investigated traders are liable for the following different reasons:

(1) Telecom Italia had not acted in compliance with the required professional diligence, since it was aware of the disputed issues, and failed to take any steps to prevent them. Furthermore, it had demanded immediate payment in full, threatening subscribers that in the event they failed to pay, their telephone line would be cut off.

(2) Elsacom S.p.A., CSINFO S.p.A., Eutelia S.p.A., Karupa S.p.A., Teleunit S.p.A. e Voiceplus S.r.l. Drin TV S.r.l., AbcTrade S.r.l., Aurora Uno Sro, Telegest Italia S.r.l., OT&T S.r.l., Ivory Network Limited  (the owners or assignees of the satellite and non-geographic numbers) were found liable for not having prevented the unfair use by third parties of their instruments, damaging consumers.

To which extent can traders be held responsible for "dialler" programmes installed on their users' computers? 

URL: http://www.agcm.it/agcm_ita/DSAP/Dsap_pi.nsf/6334640d6447abfec1256e6e002499b7/f12797418bcc1454c125751a00486d29?OpenDocument

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The Italian Competition Authority decided to fine the traders as follows:

 

- Telecom Italia - 325.000 EUR

 

- Elsacom S.p.A. - 270.000 EUR

 

- CSINFO S.p.A. - 255.000 EUR

 

- Eutelia S.p.A. - 215.000 EUR

 

- Karupa S.p.A. - 255.000 EUR

 

- Voiceplus S.r.l. -  255.000 EUR

 

- Teleunit S.p.A. -  180.000 EUR

 

- Drin TV S.r.l. -  115.000 EUR

 

- AbcTrade S.r.l. -  115.000 EUR

 

- Telegest Italia S.r.l. -  115.000 EUR

 

- OT&T S.r.l. -  115.000 EUR

 

- Aurora Uno Sro -  115.000 EUR

 

- Ivory Network Limited -  100,000 EUR

 

The Authority also ordered the traders to cease the unfair behaviour.