Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1.

(1) Stating that services are provided free of charge, while in fact only some of those services are actually provided free of charge and the rest of the services is only available upon payment, constitutes a misleading commercial practice. 

(2) When informed by a trader that the access to services is subject to payment of a small symbolic fee only, a consumer cannot reasonably expect that obtaining access to these services is in fact more expensive, as the symbolic fee only relates to the cost of using a certain money transferring system.

The defendant provided access to television services via Internet connection. On the website operated by the defendant, it was announced that the service offered by the defendant was a free of charge internet television service that allowed to watch more than 600 channels created by the defendant. Upon complaints of the consumers, the President determined that only approximately 20 channels were available free of charge. 

While trying to access other channels, the consumer was transferred to a website that ordered him to update software by clicking on a hyperlink, and after a sequence of successive hyperlinks the consumer reached the website containing the information that in order to obtain access to the chosen channel, the consumer had to pay the symbolic amount of 0,50 PLN.



This price was only applicable if the consumer used the Pay Pal on-line money transfer system which was inaccessible due to some technical issues. 



The consumer could equally effect payment by means of a text message, in which case the payment amounted to 25,00 PLN (VAT exclusive).

(1) Does the indication that services are provided free of charge, while in fact only some of them are provided free of charge and the rest is available upon payment only, constitute an unfair commercial practice?

(2) Does the way in which consumers were informed about the prices violate consumer interests?

Both legal questions were dealt with together.



The President indicated that the practice used by the defendant could have misled consumers in two ways. 



First of all, the manner in which the services were advertised created the impression that the services provided by the defendant were free of charge. In this respect, the consumers were attracted to the defendant’s activity and after reaching the website they were more eager to also use services that were available after the payment. Hence, this commercial practice is likely to cause the consumer to take a transactional decision that he would not have taken otherwise (see legal issue n° 1).



Secondly, for the services that were not free, the consumers were initially informed about the promotion which required them to pay a small symbolic fee only. Reading this information, the consumer could not reasonably expect that obtaining access to the services would be more expensive and that this low fee related only to the cost of using the Pay Pal money transferring system. 



The manner in which information was presented on the website caused a false impression to the average consumer, which influenced the transactional decision made by the consumer and which would not have been made if he had not been misled. 



Therefore, taking into consideration the fact that the price information was presented in an unclear and ambiguous way, the President came to the conclusion that the defendant breached the prohibition on unfair commercial practices.

URL: http://decyzje.uokik.gov.pl/dec_prez.nsf/0/8B8D3AD726326F8DC1257825003206BC/$file/RKR_26_2010.pdf

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The commercial practice was found to be unfair.



The President confirmed that the defendant had already stopped using the contested practice. 



The President imposed on the defendant a financial penalty, paid to the state budget in the total amount of PLN 27,396.