Consumers start and lose

Yesterday, the Tagansky District Court of Moscow published a decision on the claim of the Consumer Rights Protection Society “Public Control” against MTS OJSC. The dispute was about the legality of paid incoming SMS messages. Unfortunately, the case developed according to a fairly typical scheme for “Public Control”: the intention to sue an opponent was publicly announced long before the process, then this intention was commented on for a long time by the complainants to the press, and then the court was played with a crash.

Relatively honest ways
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It is a pity, because the problem of “paid SMS” and other “entertainment content” has long been what is called “overdue”. In this area, the real orgy is going on, and those tricks that content providers resort to for a relatively honest withdrawal of money are called by most subscribers “fraud”.

True, criminal cases related to "short numbers" are initiated in isolated cases. Interest in the lawsuit of “Public Control” was added by the fact that one of such cases occurred about a week before the lawsuit was considered by the Tagansky court. Those days have long passed when a subscriber to the Internet, having fallen victim to a cunning virus, received a six-figure bill at the end of the month for communicating with some distant foreign country.

Modern mobile fraudsters peck, like a hen, by grain, writing off amounts at a time not exceeding two hundred rubles. Cellular operators, getting from this their percentage, overlooked all that is happening in the field of "content services". Police and other law enforcement officers to catch SMS-scam, too, are not trained. So a subscriber who has ordered, for example, downloading a file from the file hosting service “at a fast speed”, often finds that the stated N rubles cost only one-day access, and he was made happy for a whole month by removing the amount of thirty N. The jealous husband, subscribing to receive messages from his wife's phone, he suddenly discovers that he has taken part in the “game”, and no one has promised him the real surveillance of his half. And so on…

But the real chaos began when a way to subscribe to paid SMS was found without the knowledge of the subscriber himself. In the usual option for a subscription, the user must independently perform some actions, confirming that he ordered the service. In the new, progressive version, the code required for the subscription is embedded in the hyperlink, which is often not shown to the user explicitly. The link can be accessed both from the phone and from the computer, the result will be the same: the subscriber “signs up for the service”.

In order to “vparit” this link to the user and force him to register, the so-called “virtual postcards” are most often used: anyone can enter a phone number on the site, with the result that a “postcard” will be sent to that number. If the subscriber follows the link - this is where they will sign it ...

At the same time, the subscription itself is free: the money for “information services” is withdrawn upon receipt of incoming messages that the subscriber allegedly ordered. According to the lawyers of “Public Control”, such an incoming message is a “connection via mobile network”, by which the “Rules for the provision of mobile communication services” means “the establishment of an interaction between means of communication as a result of a call, allowing the subscriber to send and / or receive voice and / or non-voice information. ” And if so, then they should all be free of charge, just like any such connection “established as a result of a call to another subscriber” (this is indicated in Article 54 of the Law “On Communication” ).

The court, however, did not agree. In his opinion, the fee in this case is not charged for the SMS itself, but for “providing access to the services of the content provider.” In addition, MTS representatives convinced the court that this provision of the law does not apply to content providers at all: if there are no subscription agreements with them and no SIM-cards are issued to them, then they are not "subscribers" at all. Therefore, the telephone connection that they establish cannot be considered “established by another subscriber” ... In general, the issue raised by “Public Control” on the basis of which cellular operator deducts certain amounts for services rendered by completely different people, raises many other questions. What role does MTS play in these relationships? Paying agent? And why then this is not stated in the subscription contract? If the additional fee is taken for other people's services, then why are they indicated in the operator's bills as “communication services”?

Precedents

Claims against mobile operators due to paid SMS-messages have been filed before. Just a month before the trial in the Tagansky court, in August, the Moscow Arbitration Court considered two lawsuits by lawyer Igor Labutichev to MTS and Avant-Mobile content provider. In the first of the claims, Labutichev demanded to invalidate part of the clauses of the agreement between these companies. According to the plaintiff, when MTS charges subscribers for the provision of SMS delivery services to Avant-Mobile numbers and pays him remuneration from these funds, such operations should be qualified as “donation”, which is prohibited between commercial organizations. But, according to the court, Labutychev had the right to file a claim only on his own behalf, as a shareholder of MTS, and only if his rights were violated by the disputed contract. He acquired the company’s shares after it entered into an agreement with Avant-Mobile, and this was enough to reject the claim.

The second lawsuit of Labutichev was addressed to MTS alone, and Avant-Mobile was the third person in it. The plaintiff demanded that he return the money spent on paid messages, citing the fact that this money represents the “unjust enrichment” of the cellular operator. The claim was also denied: according to the court, Labutichev did not prove the very fact of unjust enrichment, and also did not deny that he actually made calls to “short numbers”.

In addition, the interesting question about advertising, which is distributed via SMS. Although it is free, it is also annoying, so it’s not surprising that there were attempts to sue because of this. The same MTS became the defendant in one of the lawsuits, and this case was the only one that reached the Presidium of the Supreme Arbitration Court.

On March 31 of last year, the Presidency, by its decision, declared such advertisements completely legal. The case itself concerned the prescription of the local branch of the Federal Antimonopoly Service with a request to ban inappropriate advertising sent by SMS. According to the applicant, in this case the provisions of the law “On Advertising” were violated, which allowed its distribution through telecommunication networks only with the prior consent of the recipient of such advertising.

Initially, the FAS management really recognized such advertising as inappropriate. But not due to the lack of consent of the subscriber, but due to the fact that MTS violated the second part of the eighteenth article of the Law, which prohibits the distribution of advertising "using the means of choice and (or) dialing a subscriber number without human intervention (automatic dialing, automatic distribution) ". The fact is that advertising messages were sent to the subscriber along with inquiries about the state of his balance, so the “lack of agreement” could not be proved. This was a fatal mistake.

MTS began to appeal the legality of the actions of the FAS in court. Having lost the first instance, they filed a complaint against this decision, the appellate court overturned it and declared the advertisement “proper”. According to the court, personalized information, the dissemination of which is “of a targeted nature,” cannot be considered advertising, since it is intended for a specific subscriber, and not for the “indefinite circle of persons”. At the same time, the court considered that “they are intended only for MTS subscribers ” as a sign of “targeted nature” of messages. According to the court, the FAS also did not prove that similar messages were sent to other subscribers. In addition, according to the court, it was not proven that the mailing was carried out automatically.

MTS lawyers solemnly assured the court that this was not the case: “According to the Company's arguments, the subscriber numbers are selected by the appropriate specialist directly determining the main criteria that the subscriber must have in order to become a member of the newsletter, in particular, age, place of residence, nature of services consumed and etc., as well as specific subscriber numbers. The procedure for determining the subscribers participating in the mailing list and their list are drawn up with the internal documents of MTS. ”

The decision of the appellate court was subsequently fully supported by the Presidium of the Supreme Arbitration Court. For this legal feat, Andrei Pyanykh, head of the legal and judicial department of the MTS Legal Department, was even awarded the prize “Success. The best corporate lawyer of 2009 ”, as the“ reformer of the year ”.

By the way, one of the weak points of “consumer” lawsuits against telephone operators is clearly visible here. The certified equipment with which the communication is provided is at the disposal of the potential respondent, who, moreover, has a staff of specialists in the field of communication. What can a subscriber oppose to all this - his honest word? Or testimony? And what will they cost in comparison with the honest word of a specialist, supported by the testimony of certified equipment? That's just the same ... In general, the existing judicial practice is extremely disappointing for mobile subscribers, and the decision of the Tagansky court just confirmed this once again ... If someone else from consumers wants to sue in a similar situation, he will first of all have to study the accumulated such cases a negative experience.