Unfair Commercial Practices Directive, Chapter 1, Article 2, (b) Unfair Commercial Practices Directive, Chapter 1, Article 2, (d) Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Article 5, 4., (b) Unfair Commercial Practices Directive, Annex I, 26.

Sending unwanted and insistent commercial communications to consumers’ mobile phones, where the content of such communications invites consumers to play a game of chance, constitutes an aggressive commercial practice.

The plaintiff is an undertaking that sent commercial communications via SMS to consumers’ mobile phones.

The relevant commercial communications invited consumers to play games of chance and the content of these communications implied that the possibility of winning the game was very high and the game itself was fairly easy (“Answer correctly and you can instantly win Ls1000, Ls1500 and Ls3000! Where is New York situated? a) USA b) France? Send a) or b) right now to the number 8668 right now!”).

Considering all the facts of the case, the Consumer Rights Protection Centre accused the plaintiff of aggressive commercial practice.

Does sending commercial communications to consumers’ mobile phones in circumstance where the content of such communications invite consumers to play a game of chance, constitute aggressive commercial practice?

Having examined all the circumstances of the case, the information provided by the plaintiff and the complaints received, the court found that the plaintiff was not entitled to send commercial communications inviting consumers to play a game of chance.

The court established the content of the relevant commercial communications to be of insistent and unwanted nature from the viewpoint of an average consumer.

The court also found that in some cases the plaintiff had not obtained the prior informed consent of the consumer and also had not provided the consumer with an opportunity to decline further receipt of the commercial communications. Additionally, the court considered that it is unfair to keep sending commercial communications to consumers who had in the past played the game of chance. By continuing to send commercial communications for an unlimited time to the consumers’ phone numbers, the plaintiff was  threatening to limit the right of consumers to choose for what purposes they want to use their phones.

URL: http://www.ptac.gov.lv/upload/ptac_lemumi/zeltadrudzis_e03-ptu-k8-8_izraksts.pdf

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The court prohibited the commercial practice whereby a trader sends information to consumers regarding a game of chance if consumers have not given prior informed consent.

The court also found that it is prohibited to send commercial information to a phone number that a consumer does not use for the purposes of playing a game of chance. Additionally, plaintiff was penalized for committing an unfair commercial practice.