Consumer Does Not Have to Pay in Full for Expensive Undesired Text Messages
Background
A customer of T-Mobile received a text message with the number
7880 as sender, in which he was asked if he wanted to win a
television set. He texted back that he did. Next, between 4 and 19
October 2007 he received 840 text messages (more than 50 per day!)
from the same number. Each text message received cost the customer
one euro fifty. A part of the costs attached thereto was paid from
the customer's call bundle. The customer refused to pay the
remaining part. T-Mobile subsequently sold its claim to the
Lindorff company.
This company summoned the customer and claimed payment of the
unpaid invoices, interest and extra-judicial costs in the total
amount of €984.27. Lindorff substantiated this claim with the
statement that the customer had registered himself for a text
messaging entertainment service by responding to the question of
whether he wanted to win a television set. Furthermore, T-Mobile
only made its network available and was not responsible for the
contents of the messages or the costs charged for them.
In short, the customer defended himself by arguing that he was
linked to a text messaging service under false pretenses. Therefore
T-Mobile has not complied with the code of conduct for text
messaging services and in addition thereto is indeed responsible
for the use of its telecommunications network. A short search on
the Internet learns that this customer is certainly not the only
'victim'; the customer therefore argued that the
'deception' occurred more often. It does not follow clearly
from the judgment, but it seems as if the customer did not only put
up a defense against the claim of Lindorff, but also claimed back
the amount of his call bundle that was used in order to pay a part
of the invoice. The part of the invoice concerned that did not
relate to the text messaging service - telephone conversations
conducted, text messages sent by him and subscription fees - was
not disputed.
Adjudication of the Court
The Court particularly focused on the above-mentioned code of
conduct. According to the Court this code of conduct is now
well-known and is widely available in social and economic life -
see for instance the website of OPTA (the Dutch Independent Post
and Telecommunications Authority). It has not been disputed that
the code of conduct applied between T-Mobile and (the owner of)
7880.
It is explicitly mentioned in the code of conduct that an offer
for a text messaging service subscription must be made through a
06-number (the Dutch prefix for mobile phone numbers) and always
requires the notification of the short code concerned and - if
relevant - the key word. Maybe most important is that the
applicable rates have to be mentioned. 7880 did not comply with any
of these requirements. In addition thereto, many other people had
been misled by 7880. The Court therefore ruled that the customer
cannot be blamed. In view of the code of conduct and the consumer
protection arising therefrom, T-Mobile should have checked these
doubtful matters. Thus far, the judgment seems logical and also in
line with earlier court cases (see for instance LJN: BC8904 dated
26 March 2008).
The Court ruled that the amount claimed by Lindorff in excess of
the call bundle (accrued by the customer) cannot be awarded. The
customer must bear his own legal costs. This probably has do to
with the fact that the customer had also refused to pay his own
normal subscription costs and costs for his text messages and
calls. The Court did award this part of Lindorff's claim.
Comments
The customer does not have to pay the full invoice,
but has to accept that his entire call credit vanished. The Court
ruled that the part of the amount connected to the text messages
that could be paid from the call bundle does not produce any
(additional) costs for the customer. This is somewhat remarkable:
it is true that the amount that could be 'paid' from the
call bundle did not produce any direct financial costs for the
customer, but the call bundle did represent an economic value.
After all, the accrued call bundle may be used at a later time (for
instance during a holiday) and sometimes at the end of the
subscription period the remaining call credit can be transferred
into a prepaid call credit. If the costs connected to the text
messages cannot be attributed to the customer, then why would it be
correct to take the call credit from the customer?
It seems somewhat unsatisfactory that the customer has to bear a
part of the damage suffered due to the text messages received - his
call credit has been used up - while the Court indicated that the
customer is not to blame. However, the customer apparently accepted
for 16 days that 50 text messages per day came in without taking
any successful action against it. In my opinion, taking action
would have been the obvious choice, especially because it has been
made clear on various forums how the text-message flow could be
terminated.
The senders of the undesired paid text messages are also dealt
with. The Dutch Consumer Authority has already imposed penalties up
to an amount of €120,000 on various businesses using a similar
method of operation as used by 7880. It seems that the Consumer
Authority has not imposed any sanctions on 7880 yet.