Case law

  • Case Details
    • National ID: MD 2015:2
    • Member State: Sweden
    • Common Name:link
    • Decision type: Court decision in appeal
    • Decision date: 09/03/2015
    • Court: The Swedish Market Court
    • Subject:
    • Plaintiff: The Consumer Ombudsman (KO)
    • Defendant: Swedish Online Services SOS AB (previously First Date International FD AB)
    • Keywords: identity of the trader, information requirements, misleading omissions, price information, right of withdrawal
  • Directive Articles
    Consumer Rights Directive, Chapter 2, Article 5, 1., (c) Consumer Rights Directive, Chapter 3, Article 6, 1., (a) Consumer Rights Directive, Chapter 3, Article 6, 1., (b) Consumer Rights Directive, Chapter 3, Article 6, 1., (e) Consumer Rights Directive, Chapter 3, Article 6, 1., (g) Consumer Rights Directive, Chapter 3, Article 6, 1., (h) Consumer Rights Directive, Chapter 3, Article 6, 1., (o) Consumer Rights Directive, Chapter 3, Article 6, 1., (p)
  • Headnote
    (1) The invitation to purchase one week’s online dating for the price of SEK 1 without stating that the agreement term is longer than one week, and without stating that the invitation to purchase amounts to a higher final price than SEK 1, constitutes misleading omission as it is likely to cause the consumer to take a transactional decision he/she would not have taken otherwise.

    (2) Omission to include full information about the consumer’s right of withdrawal on the trader’s website constitutes misleading omission as it is likely to cause the consumer to take a transactional decision he or she would not have taken otherwise.

    (3) Omission to publish the trader’s correct address, or any email address on the trader’s website constitute misleading omission as it is likely to cause the consumer to take a transactional decision he or she would not have taken otherwise.
  • Facts
    The defendant markets and sells online dating services, inter alia, on the defendant's website. The dating services are offered through three types of subscription memberships and different promotions, which are limited in time, apply from time to other.

    The start page of the defendant's website states"become a free member!" and the consumer can become a member by submitting certain personal details. A free membership does not entail any obligations to pay and the consumer will only be able to use limited functions of the service. As a free member, the consumer will receive offers for becoming a paying member to be able to use more functions of the service.

    The consumer must accept the terms and conditions when becoming a member. The terms and conditions include limited information of the prices and terms of terminating the services. The terms and conditions only includes information that the consumer "has a right to withdraw from the contract by sending the defendant a message within 14 days after a purchase".

    In the marketing of different campaigns, different price information can be found on several places on the defendant's website. Several consumers have reported the offers to the plaintiff and claimed that the offers appear to be a trial subscription for the price of SEK 1, whereas in fact they have been charged the monthly subscription fee of SEK 279 after a week.

    Several consumers have reported the defendant to the plaintiff on the basis that they cannot find contact information of the defendant. No information on the defendant's email address can be found and the contact form can only be filled in as a paying customer.

    The plaintiff has applied for an interim decision from the court against the defendant, and the court has approved the plaintiff’s claims 1 and 2 and 3 but only regarding the email address.
  • Legal issue
    The Court orders the defendant, under the penalty of a fine, to:
    (1) provide information to the consumers on (i) whether the service is provided as a subscription, or (ii) the total price payable by the consumer for the offer, if the total price for any reason will be higher than the advertised price, when marketing an offer with quotation to consumers.

    According to the provisions of the Distance and Off-Premises Contracts Act, in force before 2014-06-16 when the amendments pursuant to the Directive 2011/83 entered into force, a trader shall provide the consumer with information regarding its name, its address, the goods' or the services' main characteristics and information of the goods' or the services' price, including taxes and fees and delivery costs. This corresponds to the requirements in Directive 2011/83. The court found that the defendant had not provided the information above.

    (2) within reasonable time before a distance contract is concluded with the consumer, to give the consumer a clear and understandable information, adopted to the means of communication used, on (i) the procedure to withdraw from the contract, (ii) how the withdrawal period is calculated, (iii) the consequences for the consumer if he or she withdraws from the contract, and (iv) if applicable, that the consumer cannot withdraw from the contract if the consumer approves the commencement of the service.

    According to the provisions of the Distance and Off-Premises Contracts Act, in force before 2014-06-16 when the amendments pursuant to the Directive 2011/83 entered into force, a trader shall provide information on whether a right of withdrawal exists, the conditions that applies for the consumer to be able to invoke his or her right of withdrawal, how the period of the rights of withdrawal is calculated, the procedure to withdraw from a contract, the consequences when withdrawing from a contract and, if applicable, that the right of withdrawal does not apply is the consumer approves to the commencement of the services. This corresponds to the requirements in Directive 2011/83. The court found that the defendant had not provided the information above.

    (3) to provide information about the defendant's name, address, registration number and e-mail address, in an simple, direct and permanent manner, when marketing the services provided by the defendant on the Internet.
  • Decision

    Whether the following constitutes misleading omission:

    (1) the invitation to purchase one week’s online dating for the price of SEK 1 without mentioning that the period of agreement in fact is longer than one week or that the invitation to purchase amounts to a higher final price than SEK 1;

    (2) not to include the full information about the consumer’s right to withdrawal on the trader’s website;

    (3) not to post the trader’s correct address, or any email address on the trader’s website.

    URL: http://www.marknadsdomstolen.se/Filer/Avgöranden/Dom2015-2.pdf

    Full text: Full text

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  • Legal Literature

    No results available

  • Result
    The court approved the plaintiff’s claims