Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1.

Omitting to provide information on the possible unfair use of the advertised service constitutes an unfair commercial practice.

This case concerned the voting system used in several television broadcastings and, in particular, in the "festival di Sanremo 2010". Further to a complaint reported by a consumers' association on 13 October 2010, the Italian Competition Authority decided to start an investigation proceeding against the television supplier Rai Radiotelevisione Italiana S.p.A., the telecom operator Telecom Italia S.p.A. and the digital contents producer Neo Network S.r.l.

The subject of the investigation was (i) the information that RAI provided to customers, regarding the voting system and (ii) the absence of provisions or sufficient measures to prevent possible misuse of the service. By not putting sufficient measures into place, it was possible to send votes by SMS in series, therefore enabling the misuse of the voting system by professional subjects (e.g. call centres).

According to the consumers' association the traders omitted material information, necessary for the consumer to take an informed transactional decision. Consumers believed they could influence the vote by sending SMS, while their votes had only a marginal value due to a large number of votes sent by professional subjects.

Neo Network s.r.l. and Telecom declared their complete innocence, as mere suppliers of premium numbering and related technology platforms for remote voting, without any role or involvement in the promotion of the voting system.

Conversely, RAI claimed the absence of a standard practice in the field. RAI argued that charging it with liability for consequences arising out of the given voting system would entail a form of a strict liability.

Regarding the alleged violation of the prohibition of misleading commercial practices, Rai noted that allowing call centres to send votes in series was not able to cause damage to consumers, when it was clear that everyone (i.e., individual users as well as business) could vote.

The Italian Competition Authority performed inspections in collaboration with the Market Protection Corps of the Guardia di Finanza (Italian Tax Police) at business premises of the defendants and several other third parties involved.

According to the Italian Competition Authority the concerned voting system allowed RAI to realize huge profit margins. It was established that the defendant RAI was aware of the possibility of the improper use of the voting system by sending SMS in series. The defendant RAI did not adopt sufficient measures to prevent possible improper use of the voting system by call centres or professional subjects. The only measure taken by the RAI was the reduction of number of votes for each "voting session" sent by the same user, during "festival di Sanremo 2010".

As a result, the Authority held, the above mentioned practice encouraged consumers to take a transactional decision that they would not have taken otherwise, and, thus, impaired their ability to take make an informed transactional decision.

As a matter of fact, the consumers voted, paying the fee required, believing that they could influence the outcome of the vote and, more generally, the outcome of the television competition.

Is it an unfair commercial practice to omit information concerning the possible unfair use of an advertised service?

URL: http://www.agcm.it/ricerca-avanzata/open/C12560D000291394/FDC9DB7CA3D89825C125784D004C8FFE.html

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The Italian Competition Authority decided to fine the trader and it issued a cease-and-desist order regarding the criticized practices.

The Italian Competition Authority ordered defendant RAI to declare a specific corrective statement, ensuring that the unfair commercial practices do not continue to procure any effects during the "Festival di Sanremo 2011" and in relation to other television broadcastings that used similar voting system.