Who should pay the 0.1 yuan unsubscribe fee for commercial SMS?
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Many e-commerce platforms have the form of sending commercial advertisements via SMS, but it is not clear who will bear the unsubscription fee for SMS.
Some courts determined that the platform party should bear the SMS cancellation fee if it is not agreed.
However, some days ago, the platform changed the user agreement and added a clause that the unsubscribe fee is borne by the user.
In this regard, the lawyer said that this is an overlord clause and should be deemed invalid.
Who pays for the unsubscribe fee for commercial advertisement SMS?
A few days ago, a fresh food e-commerce platform changed the user agreement and added a new one: the unsubscribe fee is borne by the user, which arouses concern.
In October last year, the platform lost the "unsubscription fee dispute".
The user Ms. Wang was charged for unsubscribing to the platform's commercial SMS, and she sued her to the court.
The court found that the user agreement did not stipulate who would bear the unsubscription fee, and it was judged that the platform party should bear the 0.1 yuan SMS unsubscription fee.
The lawyer believes that this new clause added to the platform has increased the burden on users and should be an invalid standard clause.
At the same time, the maintenance of rights and interests cannot expect every ordinary consumer to file a lawsuit, and the supervisory authority must take the initiative to assume supervisory duties.
Consumers sued the platform for unsubscription fees
In May 2019, Ms. Wang downloaded and registered the app of a fresh food platform.
In November 2019, the platform sent commercial advertisement text messages to Ms. Wang three times a day.
In desperation, Ms. Wang chose to reply "N" to unsubscribe, but in this process, a text message fee of 0.1 yuan was incurred.
In March 2020, Ms. Wang sued the platform to the Beijing Internet Court, requesting the court to invalidate the terms of the platform's sending of commercial advertising text messages, and should bear the SMS cancellation fee of RMB 0.1.
In this regard, the court held that the platform has a clause in the user agreement to send commercial advertisement text messages to users. The content of the clause itself does not exempt the platform from liability, increase the liability of platform users, and exclude the main rights of platform users, and they are all bolded or underlined. A reasonable reminder was made and the reminder obligation was fulfilled.
Therefore, the court held that the standard clause should be valid.
At the same time, the court pointed out that the user agreement and privacy policy of the platform did not stipulate the burden of SMS unsubscription costs. If the burden of performance costs is unclear, the party performing the obligation shall bear it.
Ms. Wang sent the unsubscribe text message to exercise the right to refuse to receive the text message instead of fulfilling the obligation.
Therefore, the cancellation fee should be borne by the platform party.
In the end, the court made a first-instance judgment, ordering the platform to compensate Ms. Wang for the loss of SMS charges by 0.1 yuan.
The Civil Code regulates the overlord clause
On January 11, the reporter saw in the user agreement of the platform's APP that the terms of "Users' Rights and Obligations" were written in boldface: If users do not want to receive commercial promotion information, they have the right to opt-out or set rejection messages.
The new content of the clause "If the user chooses to cancel the reading by phone or SMS, please bear the corresponding telecom charges."
The agreement went into effect on December 4, 2020.
In this regard, Xiong Chao, a lawyer at Beijing Jingshi Law Firm, said that the revised terms increase the burden on users and exclude the responsibility of the platform. It should be an invalid format contract and the cancellation fee should be borne by the platform.
"Previously, the court found that the terms of sending commercial advertisement SMS are effective, which is based on the wide range and difference of Internet users, and it is also in line with Internet users' tolerance for information reception." Xiong Chao said, "but the revised terms make users bear the responsibility for SMS return. The subscription fee and the'bundling' written into the agreement violates the principle of fairness."
"This is an obvious overlord clause." Zhang Aidong, director of Guangdong Yaowen Law Firm, also held the same view.
He pointed out that the Civil Code clearly stipulates the validity of standard clauses.
According to Article 496 of the Civil Code, if the party providing the standard clause fails to perform its obligation of prompting or explaining, causing the other party to fail to pay attention to or understand the clause that has a major interest in it, the other party can claim that the clause does not become the content of the contract.
In addition, Article 497 of the Civil Code stipulates that if a party providing a standard clause unreasonably exempts or mitigates its liability, aggravates the other party’s liability, restricts or excludes the main rights of the other party, the standard clause is invalid.
"This is actually the dual protection of consumer rights set by the Civil Code." Zhang Aidong further explained, "If the platform does not fulfill its obligation of prompting, consumers can claim that the terms should not become contract content. Even if the platform prompts, the content of the terms exempts the platform. Consumers can also claim that the clauses are invalid if the liability is aggravated."
1 The dilemma behind the dime lawsuit
"It turns out that you have to spend money to unsubscribe SMS? I didn't know before." After Ms. Wang won the 1 dime unsubscription fee lawsuit, many netizens expressed such emotion.
The reporter found that many e-commerce platforms currently have the form of sending commercial advertisements via SMS, and they also provide unsubscription methods such as reply letters, but it is not clear who will bear the unsubscription fee for SMS.
In addition to who should pay for the cancellation fee, there are many cancellation "routines" and mysteries that plague consumers.
For example, you can still receive SMS after you unsubscribe.
Earlier, media reported that Chengdu citizen A Lin (pseudonym) replied "T" to unsubscribe after receiving the promotional text message.
Unexpectedly, not only did the promotional text messages not be terminated, but the frequency of push notifications increased from about once every 10 days to about once every 3 days.
There are also consumers who experience "being pushed" without their knowledge.
Some netizens complained: “Some merchants who push text messages have never heard of it.” Many netizens reported that after buying something on an e-commerce platform, they seem to have enabled push by default.
"The store will send out promotional text messages, but I didn't get my authorization in advance."
In Zhang Aidong's view, the cost of protecting consumers' rights is far greater than the cost of infringement of merchants, whether it is being "pushed" or "received cancellation fees."
"In our lives, this kind of'small-cost, large-scale' infringements happen from time to time, but how many consumers will actually go to lawsuits?" Zhang Aidong said, "Even if some people stand up to defend their rights, the merchants have a big deal on this. For those consumers who have not filed a lawsuit, their rights and interests cannot be protected, and the cost of infringement by businesses is too low."
"We should be grateful to the more genuine consumers like Ms. Wang, which arouse everyone's attention to rights and interests. However, the protection of rights and interests cannot be counted on every ordinary consumer to file a lawsuit. Judicature is only an afterthought." Xiong Chao pointed out, "First of all, the business They must abide by the law and consciously safeguard the legitimate rights and interests of consumers; secondly, the regulatory authorities must take the initiative to assume their responsibilities; finally, telecom operators should also make a good balance between social welfare and the interests of businesses."
Lu Yue