Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (d) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (f) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Annex I, 20.

(1) Presenting products as free of charge, constitutes a misleading practice, when in reality such products can only be used after entering into a paying subscribing.

(2) The use by a trader on its website of a logo which implies that the trader has gained some kind of official approval, while in fact it has not, constitutes a misleading commercial practice.

(3) The violation of a code of conduct constitutes a misleading practice, when the trader has declared to be bound by the code.

(4) The omission to provide clear information in an internet advertisement on the technical specifications necessary to enjoy a product constitutes a prohibited misleading omission.

(5) The omission to provide clear information on the product price constitutes a misleading omission.

(6) Advertising a product as "for free", when in fact the consumer has to pay several costs, constitutes a misleading commercial practice.

(7) A television commercial constitutes a misleading commercial practice, when the overall impression of the commercial is that the advertised product is for free, even when it is indicated at the bottom of the television screen that the product is paying.

(8) The omission to mention the identity and the geographical address of a trader during a television commercial constitutes a breach of the prohibition on misleading omissions.

(9) A television commercial constitutes a misleading commercial practice, when the price of the product is indicated at the bottom of the television screen, while the attention of the consumer is deliberately drawn to the advertisements itself.

 

The defendant offers paying short message service ("SMS")-subscriptions. Services are offered either via the internet or via television.

The services offered via the internet included services as "IQ test", "IQ test Facebook", "Brain age", "Love test" and "Date-meter". Services were advertised on banners placed on internet pages. By clicking on the banner, the consumer could participate in the test (e.g. an IQ test in the form of a quiz) after being directed to a webpage in which the questions were displayed. Upon finalizing the test, the consumer was invited to submit its mobile phone number in order to receive the result of the test he participated in. After submitting its telephone number on the website, the consumer would receive an SMS of the defendant, inviting the consumer to send "OK" to the defendant. By sending the "OK"-SMS to the defendant, the consumer subscribed to a paying SMS service. Both on the last website page and in the SMS it was indicated that the consumer will subscribe to a paying service by sending the "OK"-message. However, it was established that the consumer had to scroll down (both in the SMS and in the email) to see that he would subscribe to a paying service.

For its website, the defendant displayed a logo with the text "CERTIFIED", while in reality the defendant had not been granted any official approval. In fact, this logo was merely invented by a web designer.

Further, with respect to internet advertisements, the defendant had indicated on its website to be bound by the SMS-service Code of Conduct ("Gedragscode SMS-Dienstverlening"), a code of conduct specifically established for SMS-services providers. It was established that the defendant had failed to comply with several of the obligations set forth in the code of Conduct (e.g. online database in which all current SMS-services offered by a trader can be consulted, identification obligations, use of the word "free").

Further, it was established that certain categories of mobile phones could not (satisfactory) enjoy the services offered by the defendant, due to non-compliance with technical requirements to enjoy the services offered. The technical requirements were listed on the defendant's "Suitable phones" section on the website, which was only consultable when the consumer scrolled down and which was not notably indicated. As a result, several consumers having ordered a service of the defendant, not having read the technical requirements set forth by the latter, could not enjoy the paying service they had subscribed to.

As to the price of the services offered via the internet, it was established that both for subscribing to and terminating the service, the consumer had to pay a fixed cost. At no point did the website of the defendant refer to such costs. Moreover, other information relating to the price, could only be consulted by scrolling down on the webpage, while using a standard screen resolution it was not clear for the consumer that by scrolling down he would be able to consult such material information. Next, the notion "for free" was used on the webpage in relation to the service advertised.

As already mentioned, the defendant advertised some of its services using the slogan "The item displayed is for free", while in reality the consumer had to pay some other costs relating to the service (e.g. reception of an SMS sent by the defendant).

Next to internet advertisements, the defendant also used television commercials to promote its services. Several services were investigated by the Consumer Authority: Relation test ("Relatie test), Beer glass ("Bierglas"), True Love ("Ware Liefde"), Friend Finder and Beast in Bed ("Beest in Bed"). In the TV commercials, the consumer was invited to send an SMS to the an indicated number, in order to activate a service (e.g. the result of a relation test, an answer to the question "where are my friends now?", etc.). At the bottom of the screen, a black strip was visible with small white letters indicating that the service was part of a paying subscription service. Here too, when the consumer ordered a service, he received an SMS of the defendant requiring the consumer to send an "OK"-message back to the defendant, after which a subscription service is concluded.

The presentation of the television commercials was in this way that the impression was created that, when the consumer sent one message to the number indicated, the consumer would simply get an answer to this question (e.g. a relation test or a percentage of the chances of a successful relation between two persons).

In the television commercials too, the defendant did not mention any specific technical requirements for mobile phones in order to receive the service. However, when a mobile phone did not meet certain specific requirements, the consumer would receive a service of less quality. This was not in any way communicated to the consumer. In addition, no further information was provided to the consumers relating to the exact content of the subscription service.

As to the identity and the geographical address of the defendant, no information whatsoever was provided during the television commercials.

During the television commercial, the price of the service was indicated at the bottom of the television screen in small prints. In addition, the attention of the consumer was drawn to the advertisement rather than to the small prints at the bottom of the television screen. There was no communication whatsoever, relating to the fixed costs of subscribing to and terminating the service.

(1) Does presenting products as free of charge, constitute a misleading practice, when in fact such products can only be used after entering in a paying subscribing?

(2) Does using the logo "CERTIFIED", while in fact a trader has no official approval of any kind, constitute a misleading commercial practice?

(3) Does violation of a code of conduct constitute a misleading practice, when the trader has declared to be bound by the code?

(4) Does the omission to provide clear information on the technical specifications necessary to enjoy a service, constitute a prohibited misleading omission?

(5) Does the omission to provide clear information on the product price, constitute a misleading omission?

(6) Does advertising a product as "for free", when in fact the consumer has to pay several costs, constitute a misleading commercial practice?

(7) Does a television commercial constitute a misleading commercial practice, when the overall impression of the commercial is that the advertised product is for free, even when it is indicated at the bottom of the screen that the service is paying?

(8) Idem to question 4 (in television commercial context)

(9) Does omitting to mention the identity and the geographical address of a trader during a television commercial, constitute a breach of the prohibition on misleading omissions?

(10) Does a television commercial constitute a misleading commercial practice, when the price of the product is indicated at the bottom of the television screen, while the attention of the consumer is fully drawn to the advertisements itself?

 

(1) The Consumer Authority stated that in the internet statements of the defendant, it was not clearly established that the consumer would have to subscribe to a paying service, rather than just participating in a free online test. It was held that, by presenting its products as being a free product, whereas in reality the consumer must subscribe to a paying service, the trader gives the consumer false information with regard to the nature of the products offered.

(2) It was held by the Authority that by using the logo "CERTIFIED", the defendant creates the false impression that it has gained an official approval. This is likely to influence the transactional decision of the consumer.

(3) In respect of the violations by the defendant of the provisions of the Code of Conduct, it was first established by the Authority that the defendant had violated several provisions set forth in the Code (e.g. absence of an online database in which all current SMS-services offered by the defendant can be consulted, breach of certain identification obligations, prohibited use of the word "free"). In a short reasoning, the Authority applied article 6:193c, paragraph 2 of the Dutch Civil Code which implements article 6, 2 of the UCP Directive by stating that a commercial practice is regarded as misleading in case of non-compliance by a trader with commitments contained in a code of conduct by which the trader has undertaken to be bound.

(4) It was held by the Consumer Authority that the technical specifications required to enjoy the services offered by the defendant, are material information necessary for the consumer to take an informed transactional decision. As a result, omitting to provide or providing in an unclear way such material information, constitutes a misleading omission.

(5) It was stated by the Consumer Authority that by omitting, hiding or unclearly providing material information on the price of the service, the average consumer could have taken a transactional decision which he would not have taken otherwise.

(6) According to the provisions of the black list foreseen in Annex 1 of the UCP Directive, the Consumer Authority held that the commercial practice of advertising a product as "for free" is a practice misleading per se, as the consumer had to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.

(7) In respect of the television services, it is held by the Consumer Authority that material information concerning the nature of the product was omitted, including the fact that the service is a paying subscription service. By omitting such information, the consumer does not have full knowledge on the nature of the services offered. As to the text which was included in the black strip with small letters in white at the bottom of the television screen, the Consumer Authority held that such information is not sufficient, as the consumer's attention is fully drawn to the advertisement itself (using bright colors, catchphrases, moving images, etc.). Moreover, the advertisement itself only lasts for fifteen seconds approximately, leaving the consumer insufficient time both to follow the advertised product and to read the small prints on the bottom of the screen. As a result, the defendant was judged to have breached the prohibition on misleading omissions.

(8) It was held that the technical requirements to fully enjoy the service, must be considered material information for the consumer to take an informed transactional decision. In addition, the exact content of a subscription is also considered to constitute material information for the consumer to take a transactional decision. By omitting such information, the defendant has violated the prohibition on misleading omissions.

(9) It was held that the omission during the television commercials to provide information on the identity and the geographical address of the defendant, constituted a breach of the prohibition on misleading omissions (see article 7, 4. (b) UCP Directive).

(10) It was held by the Consumer Authority that, by communicating prices of products only at the bottom of a television screen in small prints, while the attention of the consumer is fully drawn to the advertisements itself, the defendant has breached the prohibition on misleading omissions, by omitting material information which the consumer needs to make an informed transactional decision.

URL: http://www.consumentenautoriteit.nl/pv_obj_cache/pv_obj_id_9885D86D80B0E58221A519D7E4584C7DF5342000/filename/Sanctiebesluit%20Celldorado.pdf

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Geen resultaten

Geen resultaten

The plaintiff's claim was sustained.