Unfair price of an SMS, suggested outright win and failure to award a prize may be costly not only for consumers.
The President of Office for Competition and Consumer Protection (UOKiK) has concluded that the competition "Empty SMS" and the Internet website www.data-smierci.pl have misled the users. Complaints are also being filed to Office of Electronic Communications. Activities of both regulators are aimed at eliminating unfair market practices.
Almost 5 trillion SMS were sent in the world in 2009. Most messages were sent by the Philipinoes and Americans - 35 per cent of all world messages. How do the Poles rank against this background? During the same period the Poles wrote in total 46 billion SMS - as shown by the UKE data. No matter whom we write to, we always need to have transparent and reliable information about the SMS price. Also the content of SMS received in various contests should not be misleading. These obligations are not always respected.
The President of UOKiK concluded that Internetq Poland, the organizer of the Empty SMS contest, and Pronatan, the owner of the datasmierci.pl Internet website had exercised unfair market practices. The completed proceedings result from many consumer complaints.
Proceedings against Internetq Poland were commenced in October 2010. The Office analysed, among other things, the contest rules and regulations, template SMS, the list of winners and prizes that they received as well as the content of TV and press advertisements. The Office had objections to the content of messages received by consumers. They unambiguously suggested that a prize would be awarded if an empty SMS was sent in reply. E.g. "I am the President of the lottery! This is to inform you that an envelope with money order confirmation for PLN 100,000 was sealed! Just send 1 empty SMS! You will be rejoicing! Or: The end of the world. The decision to transfer PLN 30,000 has been made. Please send an empty SMS! This is true!" In fact, sending such a message only guaranteed registration in a contest and possibly participation in a draw, but not a prize. The Office found that not only people who decided to participate in a contest and sent an SMS received this kind of messages from the organizer. Messages were sent also to those people who had not declared their participation but had been listed in the operator databases.
The company encouraged individual consumers to send an empty SMS with several or even several hundred messages - for example one of the participants received 168 messages within two months. It is worth stressing that it is unlawful to make an impression that a consumer will unconditionally win a prize having sent an SMS, having made a phone call or having sent a letter, while in fact this is done under different and unfavourable terms and conditions. The President of UOKiK concluded that Internetq Poland applied the so-called aggressive market practice and imposed a fine of PLN 499 650 on this undertaking. The decision is not final - the company may appeal against it to the Court.
The Office also had some objections to information on the datasmierci.pl website. The only way to know the test results was to send two SMS. The Internet website with a text "Check your date of death for PLN 1 (PLN 1,22 including VAT)" suggested that the price of a message was PLN 1. However, information at the bottom of the page said that the price was valid only for card payments. In fact, a consumer who wished to know his date of death had to send two SMS, for gross PLN 30,5 each. If consumers had reliable information about the cost, they could decide not to participate in a quiz. In addition, the Office found that the Internet website was missing information required by the law, e.g. rules and regulations, the undertaking's name, e-mail address, information about the place and means to file a complaint. As a result, consumers who wished to claim their rights, wouldn't know whom to address their claims to. Consumers were also unable to study the rules and regulations of the quiz. The Presiedent of UOKiK found Pronatan, the owner of the datasmierci.pl Internet website, in breach of collective consumer rights and decided to impose a fine of PLN 16 811. In addition, the company has to publish the sentence of a decision in a nationwide daily newspaper. A mitigating circumstance in this case was that the undertaking disabled its websites. The decision is not final - an undertaking may appeal against it to the Court.
Consumers, on the website of Office of Electronic Communications may see an instruction movie and obtain information on how to recognize a real price of an SMS. Consumers can also ask for assistance from consumer ombudsman. Free advice is also available under the 800 800 008 hotline. Also the law on counteracting unfair market practices, which empowers consumers to bring action in individual disputes, facilitates the prosecution of claims. In the course of proceedings the court verifies whether a given market practice is unfair. In such a case the undertaking has to prove before the court that a market practice in question is not misleading for consumers.