Cracking the unsubscribe fee dilemma of commercial SMS
Zhang Chunyi
Many e-commerce platforms use SMS to push commercial advertisements, but it is not clear who will bear the SMS unsubscription fee.
A few days ago, a fresh food e-commerce platform changed its user agreement and added a clause that the unsubscribe fee should be borne by the user, which aroused social concern.
It is worth noting that the e-commerce platform has just lost a "unsubscription fee dispute".
Today, the platform has revised the user agreement and added a new clause "If the user chooses to cancel the reading by phone or SMS, please bear the corresponding telecommunications tariffs", as if it is "eating a bite and gaining wisdom".
However, this is just the "shaking wit" of the platform, which is not legally tenable.
According to the relevant provisions of the Civil Code, if the party providing the standard clauses unreasonably exempts or mitigates its liability, aggravates the other party's liability, restricts or excludes the main rights of the other party, the standard clauses are invalid.
The user agreement of the platform is a repetitive use clause drawn up by the merchant unilaterally. It is a typical format clause. The rights and obligations of both parties should be determined in accordance with the principle of fairness, and consumers should be clearly informed, and the consent of consumers is required.
For platform push commercial advertisement short messages, users sending unsubscribe short messages is an act of exercising the right to refuse to receive.
The platform allows users to bear the cost of unsubscribing text messages through the format clause, which obviously limits the rights of the other party and increases the burden on the other party. It should be an invalid format contract.
However, compared with the 0.1 yuan SMS tariff loss, the cost of rights protection is much larger, and it takes a lot of time and energy.
It is not realistic to expect every ordinary consumer to file a lawsuit.
Therefore, in the face of the dilemma of protecting consumers' rights of "chasing chickens and cattle", relevant departments need to stand up and support consumers.
On the one hand, the relevant departments should talk to the e-commerce platform, request it to delete the overlord clause, and allow users to unsubscribe from commercial SMS through the APP for free.
On the other hand, in view of the fact that the unsubscription fee for SMS is infringing on the interests of an unspecified majority of consumers, consumer associations at all levels can file a public interest lawsuit, requiring e-commerce platforms to stop the infringement and bear the liability for compensation, thereby forcing relevant platforms to respect consumption The rights of the owners, abandon the idea of “shop bullying customers”.