Unfair SMS price, making suggestions of winnings and failure to award the prize may prove costly not only to consumers. The President of the Office of Competition and Consumer Protection has decided that Blank SMS competition and data-smierci.pl [date of death] website have misled the consumers. Complaints are being sent to the Office of Electronic Communications as well. The actions undertaken by both Offices are aimed at elimination of unfair market practices

Nearly 5 trillion SMSs were sent worldwide in 2009. Most of them are written by the Philippines and Americans – they have sent 35% of all messages in the world*. How do the Poles compare with them? Within the same period, the Poles have written 46 billion SMSs in total – as indicated by the UKE data**. Irrespective of the person we write to, we always should have clear and reliable information about the message price. In addition, the content of the SMSs received when participating in various competitions must not be misleading.  These obligations are not always met.

The President of UOKiK has decided that Internetq Poland – the organiser of the Blank SMS competition – and Pronatan – the owner of the data-smierci.pl website – have used unfair market practices.  The completed proceedings result from numerous complaints from consumers.

The President of UOKiK has decided that Internetq Poland – the organiser of the Blank SMS competition – and Pronatan – the owner of the data-smierci.pl website – have used unfair market practices.  The completed proceedings result from numerous complaints from consumers

The proceedings carried out against Internetq Poland were instituted in October 2010. The Office has analysed, inter alia, competition regulations, examples of text messages, list of prize-winners and of prizes they received As well as the content of TV commercials and press advertisements. The Office has reservations about the contents of the messages received by consumers. The messages clearly suggested that they will receive a prize, provided that they send back a blank SMS. E.g. I am the lottery Director! I inform you that an envelope with a confirmation of transfer of PLN 10,000 has been sealed! All you have to do is send a blank SMS! You will be happy! Or: It’s the end of the world. The decision on awarding PLN 30,000 has just been made. Please send a blank SMS. It's true!However, sending such a message guaranteed only a registration in the competition and participation in a lottery, if any, instead of award of a prize. The Office has identified that not only the persons that decided to participate in the competition and sent an SMS application received such messages from the organiser. They were also sent to persons that did not apply for participation in it and were present in operators’ data bases.

The undertaking has encouraged people to send a blank message by sending several or even dozens of messages to an individual consumer – for instance one of the participants has been sent 168 messages during two months. It should be reminded that it is illegal to make an impression that the consumer will unconditionally win a prize, e.g. after sending a text message, making a call or sending a letter, while it is actually performed on other unfavourable conditions. The President of the Office has decided that Internetq Poland has used illegal, i.e. aggressive market practice, and she has imposed on the undertaking a fine amounting to PLN 499,650. The decision is not final – the company may lodge an appeal against it to the court.

The President of UOKiK has decided that Pronatan – the owner of data-smierci.pl website – has infringed collective consumer rights, and she has imposed a fine amounting to PLN 16,811 on it

The Office had also reservations about the information presented on the data-smierci.pl website. In order to learn the test results, one had to send two SMS messages. On the website there was information: Check the date of your death for only PLN 1 (PLN 1.22 with VAT),  and thus the entrepreneur suggested that the message price amounts to one Polish zloty.  Yet, as indicated by the information at the bottom of the page, the price was applicable only in the case of payment by means of card. In reality a consumer who wanted to learn the date of their death had to send two SMSs costing PLN 30.5 gross each. If one had reliable information on the service cost, one could resign from participation in the quiz. Furthermore, the Office has decided that the website did not contain any information required under the law – e.g. regulation, name of the undertaking, e-mail, information about the place and way of filing complaints. Therefore, a consumer who wanted to pursue their claim would not know where to address them.  Additionally, they were also not able to read the rules of the quiz before participation in it. The President of UOKiK has decided that Pronatan – the owner of data-smierci.pl website – has infringed collective consumer rights, and she has imposed a fine amounting to PLN 16,811 on it. Moreover, the company has to publish an advertisement in a national newspaper containing the text of this decision. Extenuating circumstance in this case consisted in the fact that the undertaking has closed their websites. The decision is not final – the entrepreneur may lodge an appeal against it to the court.

On the website of the Office of Electronic Communications, the consumers can watch an educational film and receive information about the methods of identifying the actual SMS price.  Assistance can be obtained from consumer ombudsmen. The act on counteracting unfair market practices may also be useful in pursuing claims. The act provides the consumers with the possibility to bring an action in individual disputes with undertakings. In the course of the proceeding, the court verifies whether the market practice used by an entrepreneur is unfair. In such a case the burden of providing evidence  before the court that the market practice is not misleading to consumers rests upon the undertaking.

Additional information:
Małgorzata Cieloch, Spokesperson for UOKiK
Department of International Relations and Communication
Pl. Powstańców Warszawy 1, 00-950 Warszawa
Tel (+48 22) 827 28 92, 55 60 106, 55 60 430
faks (+48 22) 826 11 86
E-mail: malgorzata.cieloch@uokik.gov.pl

* http://www.itu.int/ITU-D/ict/material/FactsFigures2010.pdf

** http://www.uke.gov.pl/search/index.php?lang_id=1&word=raport+rynek&x=0&y=0