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Case detail



Directive article Annex I al2 28.
National ID 4Ob27/13v
Country Austria Decision date 23/09/2013
Common name SMS-Vertragsänderung Decision type Supreme court decision
Court Oberster Gerichtshof (Wien) Plaintiff(s) Unknown
Court translation Supreme Court (Vienna) Defendant(s) Unknown
Subject unwanted solicitations
Keywords aggressive commercial practicesblack listunordered product

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Headnote

Opt-out offers per SMS by means of which an additional (paying) product/service is forced upon the customer, unless he explicitly objects, are assessed as aggressive commercial practice.

Facts

The defendant, a telecommunication provider for (telephone) services, had sent to several of its customers an SMS, by means of which a higher tariff was offered to the customer. The customer was given an option to answer negatively to the SMS, otherwise the tariff (including additional costs in the amount of EUR 2 per month) shall apply. The sending of such SMS had no basis in the individual contracts (general terms and conditions) with the customers.

The plaintiff requested the defendant to cease and desist to prompt the customers with SMS, offering additional services and providing those services (at an additional costs) in case the customer did not explicitly opt-out.

In first instance and in appeal, the courts had ruled that this practice constitutes an aggressive commercial practice, demanding payment from consumers for unsolicited services.
 

Legal issue

Are opt-out offers per SMS by means of which an additional (paying) product/service is forced upon the customer, unless he explicitly objects, assessed as aggressive commercial practices?

Decision

The Supreme Court assessed the case under the prohibition of Annex I No 29 of the UCP Directive, and considered the sending of SMS with offers to amend the contact a harassment of the customer, as well as a prohibited influencing of the customers, since such practice forces an amendment of the contract on the customer. This constitutes an aggressive commercial practice.

This is also the case if the defendant would include in its general terms and conditions a provision which allows unlimited amendment of the contract through fictitious consent (through lack of an objection), as this would also violate the Consumer Protection Act.

The Supreme Court affirmed  the previous decisions of the first instance court and the court of appeal.
 

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Result

The offer to amend the contract per SMS with a fictitious consent and an opt-out possibility is assessed as an aggressive commercial practice.

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