Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 1. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7, 4.

(1) Attracting consumers for paid subscription services by way of an online test, in which information about this subscription is included in a banner and only visible by scrolling down the website, does not automatically constitute a misleading commercial practice.

(2) Not complying with rules  of self-regulation constitutes a misleading commercial practice.

(3) Not explicitly mentioning that a suitable device is required to use the offered service, constitutes a misleading commercial practice.

(4) Providing information about the main characteristics of the service only by way of making reference to a website during a television commercial, constitutes a misleading omission.  

Artiq Mobile (the plaintiff) is one of the largest SMS service providers in the Netherlands. It offers consumers SMS-subscription services via internet and television advertisements. An agreement between the consumer and the plaintiff is reached through the mobile phone of the consumer.

The Dutch Consumer Authority (the defendant) made inquiries into several advertisements of the plaintiff and it appeared that the plaintiff structurally violates the Consumer Protection Enforcement Act due to failure to comply with rules regarding unfair commercial practices (i.e. misleading regarding the main characteristics of the product, misleading omissions, et cetera).

For  example: 1) Consumers were invited to take an online test in which the word "subscription service" was often hardly visible. The information that the test concerned a paid subscription service was not explicit enough. Consumers were supposed to scroll down the website in order to find out that it in fact concerned a paid subscription service. Such information is crucial to consumers because they are charged directly. Therefore, the information was considered to be false or misleading.

2) The plaintiff did not comply with the SMS Service Provision Code of Conduct (self-regulation) because information about their services and identification data was lacking. The defendant argued this caused or was likely to cause the average consumer to take a transactional decision that he would not have taken otherwise.

3) The plaintiff failed to inform consumers about the main characteristics of the service: it did not explicitly mention that a suitable device was required to use the various content items.

4) In its television commercials, the plaintiff failed to provide information about the main characteristics of the services and the identity of the provider. It only made reference to its website, but only in small letters which were hardly visible. Consumer's attention was mainly drawn to the advertisement itself, and not to the small letters. The defendant argued that the plaintiff should have taken adequate measures to state this information in a more clear manner.

The defendant became aware of complaints of consumers and conducted an inquiry into the plaintiff's compliance with the above mentioned rules.

The conclusion of the defendant was that the plaintiff acted in violation of these rules. A fine was imposed.

Subsequently, the plaintiff started legal proceedings against these fines.  

(1) Does attracting consumers for paid subscription services by way of an online test, in which information about this subscription is included in a banner and only visible by scrolling down the website, constitute a misleading commercial practice?

(2) Does not complying with rules of self-regulation constitute a misleading commercial practice?

(3) Does not explicitly mentioning that a suitable device is required to use the offered service, constitute a misleading commercial practice?

(4) Does providing information about the main characteristics of the service only by way of making reference to a website during a television commercial, constitute a misleading omission?  

According to the court, the information provided by plaintiff on its website was not misleading. The average consumer, who is reasonably well-informed and reasonably observant and circumspect, could easily discover that it was not only an online test. Although the attention of consumers was mainly directed towards the test, the banners made sufficiently clear that there was a paid subscription service involved. Hence, according to the court, there was no misleading commercial practice.

As to the failure of the plaintiff to adhere to the codes of conduct which it had subscribed to, the court states that in case a trader explicitly declares that it is bound to rules of self-regulation, the average consumer should be able to assume that a trader actually adheres to these rules. Failure to comply with these rules, important or not, does in itself affect the transactional decisions to be made by consumers in respect of the services offered. Therefore, obligations under the SMS Service Provision Code of Conduct must be strictly adhered to.

As to the use of the suitable advice, the court ruled that providing information about a main characteristic of the service by way of a link to "suitable devices" is insufficient to make consumers aware of this. There was enough space on the plaintiff's website to provide this information in a more direct and transparent manner.

Finally, the court considered the question in relation to providing information about the main characteristics of the service only by way of making reference to a website during a television commercial. The court held that the information involved did not concern information that speaks for itself, but concerned the main characteristics of the services. Therefore, this information was not allowed to remain unmentioned. The reference made to the website was only visible for a short time on television. This caused the way in which the information was provided to be inappropriate  and unclear, which constitutes a misleading omission.  

URL: http://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBROT:2012:BW3358&keyword=ECLI%3aNL%3aRBROT%3a2012%3aBW3358

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Geen resultaten

The plaintiff's request was partly granted.