Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1.

The professional diligence required to operators involved in the provision of telecom services include the obligations to control the functioning of dialers  and to inform users on the risks deriving from such fraudulent systems.

In its decision of 30 October 2010, the Italian Competition Authority fined the plaintiff, for having carried out the following commercial practices:

(i) an aggressive commercial practice involving the request for payment for unrequested telecom services which were automatically provided through a fraudulent dialer system (i.e. a software that dials out from computers, via the modem, to add charges to the phone bill without users' permission); and

(ii) an unfair practice consisting in the failure to control the functioning of the dialers systems and this to the detriment of consumers.

On appeal, the Administrative Court of first instance partially upheld the annulment request lodged by plaintiff as regards the practice under (i) and confirmed the findings under point (ii).

Subsequently, plaintiff lodged an appeal before the Supreme Administrative Court ("Council of State" or "Consiglio di Stato") for the reform of the Administrative Court of first instance's decision in the part in which it confirmed the unfairness of the commercial practice under (ii) above.

 

To what extent are telecom operators providing special numbers and telephone services at additional charges, responsible for fraudulent telecommunications systems?

The court first affirms that all the commercial operators involved in the process of provision of communication services with special numbering or additional charges (access operators, number holders, number providers, service centers) are responsible for the fraudulent installations of dialers.

In particular, even if the above operators did not materially install dialers, they nevertheless gained economic advantages. Accordingly, as far as they were aware of the fraudulent dialers installation, they are responsible for (a) having omitted control over the functioning of dialers to the damage of consumers, and (b) for having failed to inform users on the foreseeable risks deriving from such fraudulent systems.  

 

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On the basis of the above considerations, the court rejected the appeal.