On 4 August 2009, the Act to Combat Unauthorised Telephone Advertising and to Improve Consumer Protection in Special Forms of Distribution came into force. The law prohibits advertising calls to consumers unless they have given their express consent beforehand. Advertising callers are no longer allowed to suppress their telephone number. As of 4 August 2009, violations of these prohibitions can, unlike before, be punished with severe fines. In addition, consumers' rights of withdrawal from contracts concluded by telephone will be extended.
Telephone advertising has become a major nuisance in recent years. Citizens have been inundated with advertising calls and in many cases persuaded by dubious methods to sign contracts they did not want. Many companies have simply ignored the already valid regulation that telephone advertising requires the consent of the consumer.
Better protection of consumers was necessary. This is now achieved with the Act to Combat Unauthorised Telephone Advertising and to Improve Consumer Protection in Special Forms of Distribution.
In detail, the new law provides for the following improvements for consumers:
- Violations of the existing ban on unauthorised telephone advertising to consumers can in future be punished with a fine of up to 50,000 euros. In addition, the law clarifies that an advertising call is only permissible if the called party has previously expressly declared that they want to receive advertising calls. This prevents callers from invoking declarations of consent that the consumer has given in a completely different context or subsequently.
- In the case of advertising calls, the caller is no longer allowed to suppress his telephone number in order to conceal his identity. Many unwanted advertising calls have not been prosecuted so far because it is not possible to determine who called. This is because the companies usually make use of the option to suppress their telephone number. This is now prohibited by the Telecommunications Act (TKG). Violations of the ban on number suppression are subject to a fine of up to 10,000 euros.
- New cancellation options - Check whether your cancellation policy needs to be revised!!!Consumers will have more possibilities to revoke contracts they have concluded on the phone. Contracts for the delivery of newspapers, magazines and periodicals as well as for betting and lottery services can be revoked in the future, just as it is already possible today for all other contracts that consumers have concluded on the phone. In these areas, unauthorised telephone advertising is particularly common in order to persuade consumers to conclude a contract. Up to now, there has been no right of withdrawal here (§ 312d paragraph 4 numbers 3 and 4 BGB). These exceptions will be eliminated. It does not matter for the right of withdrawal whether the advertising call was unauthorised. The provision allows withdrawal for whatever reason. If the consumer has revoked the contract in due time, he does not have to fulfil it. The withdrawal period is two weeks or one month, depending on the circumstances of the individual case, and does not begin until the consumer has received information about his right of withdrawal in text form (e.g. by e-mail or fax). In the case of unauthorised advertising calls, the period is regularly one month.
- The protection against contracts that have been foisted, including the so-called cost traps on the internet, will be improved:
- If the consumer has not been informed of his right of withdrawal in text form, he may in future withdraw from contracts for services concluded by telephone or on the internet. Until now, there has been no right of withdrawal in such cases if the trader has started to perform the service with the consumer's express consent or if the consumer has arranged for the service to be performed himself. Dubious entrepreneurs have deliberately exploited this regulation to foist contracts on consumers over the phone or on the internet. The law removes the basis for this behaviour. If the consumer cancels such a contract, he or she only has to pay for the service provided by the trader up to that point if he or she was made aware of this obligation before the contract was concluded and nevertheless agreed to the service being provided before the end of the cancellation period. This makes the subordination of contracts economically uninteresting, because businesses perform at their own risk.
Examples:
A dubious company offers the creation of a very personal horoscope on the internet. Only the small print shows that you have to pay for it. The design of the website gives the opposite impression. There is no instruction about the right of withdrawal. Therefore, the consumer enters his personal data (name, address, date of birth, etc.) without hesitation. A week later, he receives an invoice for 100 euros. Only now does he realise that he has concluded a payable contract.
In future, the consumer can still revoke his contractual declaration as long as he has not paid in full. If the company did not inform him before he made his declaration that he would have to pay compensation for the service provided up to that point in the event of a revocation, the company cannot claim anything from him.
or
A consumer is called by his telephone provider and persuaded to agree to a supposedly cheaper tariff with a term of one year. Neither during the telephone call nor later does the telephone provider inform the consumer about his right of withdrawal and about the obligation to pay compensation for services provided up to that point in the event of withdrawal. The consumer continues to use his telephone as usual, but only discovers on the basis of the next three monthly bills that the supposedly cheaper tariff is actually more expensive. According to the new regulation, the consumer can still withdraw from the contract.
- In addition, the termination of a continuing obligation or the authorisation to do so in the case of a change of supplier must be in text form in the future if the new supplier acts vis-à-vis the consumer's previous contractual partner. This prevents a new provider from terminating the consumer's contract with his previous provider without a corresponding order from the consumer. This has happened frequently due to dubious providers of telephone services.Example: A telephone service provider persuades a consumer on the phone to change provider ("You save a lot of money and don't have to worry about anything"). Until now, the calling company could easily take over the settlement vis-à-vis the previous provider. In future, the termination of the contractual relationship between the consumer and his or her previous telephone provider must be in text form (e.g. e-mail, fax). The new provider can therefore only influence the existing contractual relationship if he can present such a "written document" from the consumer. In future, consumers who have not been informed of their right of withdrawal can still withdraw from the new contract even if they have already made a call via the new provider (see above).
Source: Press release of the Federal Ministry of Justice
Through the Act to Combat Unauthorised Telephone Advertising, the legislator is responding to the problems that have recently arisen due to the increase in unsolicited telephone advertising. The law further strengthens consumer protection and protects consumers.
Goldberg Attorneys at Law
Attorney at Law Michael Ulrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
