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.