What to do if you are tired of SMS advertising?
Probably, many are familiar with the situation when a warning sound is heard that a text message has been sent to the mobile phone. And now, opening a text message, we see that some organization has sent us an advertisement. Well, if you really subscribed to this newsletter.
The first thing you should know is that any advertising mailing via SMS messages without your prior consent is a violation of Part 1. Art. 18 of the Federal Law of 13.03.2006 N 38- “ On Advertising ”:
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“Article 18. Advertising distributed by telecommunication networks
1. Distribution of advertising over telecommunication networks, including through the use of telephone, facsimile, mobile radio telephone communications, is allowed only with the prior consent of the subscriber or addressee to receive advertising. At the same time, an advertisement is deemed to be widespread without the prior consent of the subscriber or addressee, unless the advertising distributor proves that such consent was obtained. The advertising distributor is obliged to immediately stop the distribution of advertising to the address of the person who applied to him with such a requirement. ”
Under advertising, in accordance with Art. 3 of the Law means any information disseminated in any way, in any form and using any means, addressed to an indefinite circle of persons and aimed at drawing attention to the object of advertising, the formation or maintenance of interest in it and its promotion in the market.
The easiest and fastest way is to call the phone number indicated in the SMS message and ask to be excluded from this list. Very often this method works, and you will no longer be disturbed. But what to do if there is no contact information of the person sending SMS messages in the SMS message, or SMS messages continue to come to you, despite promises to exclude you from the database?
In this case, you should apply with the appropriate application to the territorial body of the Federal Antimonopoly Service (FAS) at your place of residence. Addresses and links to sites of territorial bodies of the Federal Antimonopoly Service can be found here .
You can send a statement (complaint) by mail or directly through the Internet reception of the territorial body of the FAS. The procedure for applying to the FAS or its territorial body can be found here .
In your statement (complaint) you will need to specify the following information:
1. Your mobile number. Moreover, it is worth noting that the FAS staff has the right to ask you for supporting documents that the mobile operator has concluded an agreement with you for the provision of services for this number.
2. The mobile operator whose services you use.
3. Date and time of receipt of SMS messages with advertising.
4. The sender of this SMS message.
5. The text of the advertising message.
6. To facilitate finding the FAS of the person sending the advertising message, you can spend 5 minutes and through the search to determine who owns the phone number specified in the advertising message, or how you can identify the sender of such a message.
For example, if you have “SHATURA” indicated as the sender, and in your advertising SMS messages there is an advertisement for furniture, then with 99% confidence you can say that this mailing is done by representatives of the Furniture Company “Shatura” OJSC.
As a result, you can write in a statement (complaint) that, in your opinion, the advertisement is carried out by the company Furniture Company Shatura, and you ask to check this information. If the advertising messages came to you more than once, this should also be added to your application (complaint).
In the operative part of your statement should indicate that the advertising newsletter in violation of Part 1. Article. 18 of the law on advertising was carried out by both the sender and the mobile operator without your consent. The mobile operator should also be responsible for violations of advertising laws. This conclusion is confirmed by arbitration practice. So, the Moscow Arbitration Court in case No. 40-77128 / 11- 153-690 when considering the complaint of Vympel-Communications OJSC and Mobile Dialogue LLC about the decisions of the Federal Antimonopoly Service (FAS Russia) of 09.06.2011 on the case No. RC 08.11.10 / 1 and in case No. RC 08.11.10 / 2 on bringing the above-mentioned persons to administrative responsibility indicated:
“Thus, it follows from the case file that the court established that the information distributed in the Beeline network has all the signs of advertising, since this information is sent to an indefinite circle of persons, since it is not clear from the text of informational messages for whom it was created and on the perception of whom this message is sent; aims to draw attention to the services of Mobile Dialogue LLC, offered to them within the framework of the ongoing SMS Lottery lottery, which aims to maintain the interest of subscribers of Vympel-Communications Open Joint Stock Company to the services of Mobile Dialogue and their promotion in the market .
VimpelCom did not provide evidence of a citizen’s prior consent to the distribution of advertising. Accordingly, these SMS-messages in violation of Part 1 of Article 18 of the Federal Law “On Advertising” were communicated to subscribers without the prior consent of subscribers to receive it ”.
The appeal and cassation instance upheld the decision. Moreover, the court of cassation in its decision of April 27, 2012 indicated:
“Thus, OJSC Vympel-Communications was an advertising distributor, as in the framework of the agreements concluded, it actually carried out information on the conduction of the promotional lottery to the attention of consumers . ”
According to your application, the FAS is obliged to check and, according to its results (at least), make an order to stop the person sending the SMS message to stop the violation. Part 1. Article. 18 of the Law on Advertising. If this mailing will continue even after the issuance of the Order to cease the violation, the person sending these messages should be held liable under Part 1. of Article 14.3 of the Administrative Code of the Russian Federation.
Violation of advertising legislation by an advertiser, advertising producer or advertising distributor, except for the cases stipulated in paragraphs 2-4 of this article, articles 14.37, 14.38, 19.31 of this Code, is punishable by an administrative fine on citizens in the amount of two thousand to two thousand five hundred rubles; on officials - from four thousand to twenty thousand rubles; on legal entities - from one hundred thousand to five hundred thousand rubles.
So, we figured out what and where to write when receiving advertising SMS messages.
By your name or surname, and you did not allow the sending of advertising messages to your address, and also you don’t even know where your personal data came from. In this case, we can say that the sender uses (carries out processing) your personal data in violation of the Federal Law of 27.07.2006 N 152- “ On Personal Data ” which states that the use of personal data should be carried out only with your consent.
In this case, you should apply with the appropriate application to the territorial body of Roskomnadzor at your place of residence. Addresses and links to sites of Roskomnadzor territorial bodies can be found here .
You can send a statement (complaint) by mail or directly through the Internet reception of the territorial body of Roskomnadzor. The procedure for contacting Roskomnadzor or its territorial body can be found here .
The statement (complaint) submitted to Roskomnadzor should indicate the same thing as when submitting an application (complaint) to the FAS. The only thing, instead of indicating a violation of the Law "On Advertising", you need to indicate that the sender uses your personal data without obtaining your consent.
The links can be found with the responses of the FAS and Roskomnadzor on the fact of contacting them when sending SMS without the consent of the addressee.
We will be happy to answer questions!
But what to do if you did not subscribe, and they regularly send you advertisements via SMS messages?
The first thing you should know is that any advertising mailing via SMS messages without your prior consent is a violation of Part 1. Art. 18 of the Federal Law of 13.03.2006 N 38- “ On Advertising ”:
')
“Article 18. Advertising distributed by telecommunication networks
1. Distribution of advertising over telecommunication networks, including through the use of telephone, facsimile, mobile radio telephone communications, is allowed only with the prior consent of the subscriber or addressee to receive advertising. At the same time, an advertisement is deemed to be widespread without the prior consent of the subscriber or addressee, unless the advertising distributor proves that such consent was obtained. The advertising distributor is obliged to immediately stop the distribution of advertising to the address of the person who applied to him with such a requirement. ”
Under advertising, in accordance with Art. 3 of the Law means any information disseminated in any way, in any form and using any means, addressed to an indefinite circle of persons and aimed at drawing attention to the object of advertising, the formation or maintenance of interest in it and its promotion in the market.
The easiest and fastest way is to call the phone number indicated in the SMS message and ask to be excluded from this list. Very often this method works, and you will no longer be disturbed. But what to do if there is no contact information of the person sending SMS messages in the SMS message, or SMS messages continue to come to you, despite promises to exclude you from the database?
In this case, you should apply with the appropriate application to the territorial body of the Federal Antimonopoly Service (FAS) at your place of residence. Addresses and links to sites of territorial bodies of the Federal Antimonopoly Service can be found here .
You can send a statement (complaint) by mail or directly through the Internet reception of the territorial body of the FAS. The procedure for applying to the FAS or its territorial body can be found here .
In your statement (complaint) you will need to specify the following information:
1. Your mobile number. Moreover, it is worth noting that the FAS staff has the right to ask you for supporting documents that the mobile operator has concluded an agreement with you for the provision of services for this number.
2. The mobile operator whose services you use.
3. Date and time of receipt of SMS messages with advertising.
4. The sender of this SMS message.
5. The text of the advertising message.
6. To facilitate finding the FAS of the person sending the advertising message, you can spend 5 minutes and through the search to determine who owns the phone number specified in the advertising message, or how you can identify the sender of such a message.
For example, if you have “SHATURA” indicated as the sender, and in your advertising SMS messages there is an advertisement for furniture, then with 99% confidence you can say that this mailing is done by representatives of the Furniture Company “Shatura” OJSC.
As a result, you can write in a statement (complaint) that, in your opinion, the advertisement is carried out by the company Furniture Company Shatura, and you ask to check this information. If the advertising messages came to you more than once, this should also be added to your application (complaint).
In the operative part of your statement should indicate that the advertising newsletter in violation of Part 1. Article. 18 of the law on advertising was carried out by both the sender and the mobile operator without your consent. The mobile operator should also be responsible for violations of advertising laws. This conclusion is confirmed by arbitration practice. So, the Moscow Arbitration Court in case No. 40-77128 / 11- 153-690 when considering the complaint of Vympel-Communications OJSC and Mobile Dialogue LLC about the decisions of the Federal Antimonopoly Service (FAS Russia) of 09.06.2011 on the case No. RC 08.11.10 / 1 and in case No. RC 08.11.10 / 2 on bringing the above-mentioned persons to administrative responsibility indicated:
“Thus, it follows from the case file that the court established that the information distributed in the Beeline network has all the signs of advertising, since this information is sent to an indefinite circle of persons, since it is not clear from the text of informational messages for whom it was created and on the perception of whom this message is sent; aims to draw attention to the services of Mobile Dialogue LLC, offered to them within the framework of the ongoing SMS Lottery lottery, which aims to maintain the interest of subscribers of Vympel-Communications Open Joint Stock Company to the services of Mobile Dialogue and their promotion in the market .
VimpelCom did not provide evidence of a citizen’s prior consent to the distribution of advertising. Accordingly, these SMS-messages in violation of Part 1 of Article 18 of the Federal Law “On Advertising” were communicated to subscribers without the prior consent of subscribers to receive it ”.
The appeal and cassation instance upheld the decision. Moreover, the court of cassation in its decision of April 27, 2012 indicated:
“Thus, OJSC Vympel-Communications was an advertising distributor, as in the framework of the agreements concluded, it actually carried out information on the conduction of the promotional lottery to the attention of consumers . ”
According to your application, the FAS is obliged to check and, according to its results (at least), make an order to stop the person sending the SMS message to stop the violation. Part 1. Article. 18 of the Law on Advertising. If this mailing will continue even after the issuance of the Order to cease the violation, the person sending these messages should be held liable under Part 1. of Article 14.3 of the Administrative Code of the Russian Federation.
Violation of advertising legislation by an advertiser, advertising producer or advertising distributor, except for the cases stipulated in paragraphs 2-4 of this article, articles 14.37, 14.38, 19.31 of this Code, is punishable by an administrative fine on citizens in the amount of two thousand to two thousand five hundred rubles; on officials - from four thousand to twenty thousand rubles; on legal entities - from one hundred thousand to five hundred thousand rubles.
So, we figured out what and where to write when receiving advertising SMS messages.
But what to do if in an advertising sms-message is an appeal to you personally?
By your name or surname, and you did not allow the sending of advertising messages to your address, and also you don’t even know where your personal data came from. In this case, we can say that the sender uses (carries out processing) your personal data in violation of the Federal Law of 27.07.2006 N 152- “ On Personal Data ” which states that the use of personal data should be carried out only with your consent.
In this case, you should apply with the appropriate application to the territorial body of Roskomnadzor at your place of residence. Addresses and links to sites of Roskomnadzor territorial bodies can be found here .
You can send a statement (complaint) by mail or directly through the Internet reception of the territorial body of Roskomnadzor. The procedure for contacting Roskomnadzor or its territorial body can be found here .
The statement (complaint) submitted to Roskomnadzor should indicate the same thing as when submitting an application (complaint) to the FAS. The only thing, instead of indicating a violation of the Law "On Advertising", you need to indicate that the sender uses your personal data without obtaining your consent.
The links can be found with the responses of the FAS and Roskomnadzor on the fact of contacting them when sending SMS without the consent of the addressee.
We will be happy to answer questions!
Source: https://habr.com/ru/post/145768/
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