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Forget my number: The FAS has told us how to fight phone advertising

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18 january 2020
Helena Matciong

...the FAS regional directorates today put the fight against telephone advertisers on the line. Thus, there are already dozens of winning cases on the account of the Urals antimonopoly agents.

Don't call me, don't call me

A resident of Tyumen received a rather typical SMS: "Participate in the drawing up to 100000 rubles in December!
Form a free instant Opencard with a credit limit of up to 300,000 rubles and a 3 percent cacheback for all purchases at any bank office ...".
This was followed by the name of a very well-known bank, with a telephone number for details. The man turned out to be meticulous and decided for himself that at least one spam distributor he would bring out on clean water.
Especially since he has already received several messages from this bank.
And since the credit institution itself did not respond in any way to his request to stop mailing, he appealed to the FAS department for the Tyumen region. As a result, the antimonopoly service initiated an administrative case on the bank, as the client did not give his consent to send him advertising messages.
As experts note, it is the subscriber's consent that is the key factor. Without it, an SMS or phone call is considered illegal.
This requirement is fixed by part 1 of Article 18 of the Federal Law "On Advertising".
Moreover, the client himself does not have to prove that he did not consent to the mailing.
It doesn't matter if it's a bank, a beauty salon, a car dealership, or a mobile operator.
Well, if they can not submit any supporting documents, then they must pay a fine. In the credit institution there was an attempt to refer to a technical failure, which resulted in a "walk" mailing list. The ruse failed, the administrative case was decided in favor of the applicant. The bank was issued a fine of 100 thousand rubles.
By the way, fines from legal entities in this case are not small - up to 500 thousand rubles.
And if one imagines that a health center or beauty salon would be sued by all the participants from the mailing list, and it could be thousands of subscribers, it could easily face bankruptcy.

Inheritance advertising

It should be noted that every fifth complaint to the antitrust authorities about illegal advertising concerns telephone spam. The crux of the case, which was considered in the FAS department in the Chelyabinsk region, was that the man persistently called from a very solid bank to the number that is actually listed in their database as a client, and with permission for advertising.
Only a few years have passed since the contract was signed, and the number has already managed to pass to the new owner, who did not want to receive information about installment cards and new credit products. As a result of long proceedings in the flow of legal casuistry and bickering with the bank, the administrative case was resolved in favor of the client.
The bank was issued a fine of 105 thousand rubles.
By the way, by law, if the company distributing advertising, does not comply with the court and continues to torment the client with spam, the penalty is reissued.
In other words, you can pay from 100 to 500 thousand for one illegal SMS and several times each.

This is a tricky business, but winning

. - The search for violators is quite a long process," says Andrei Rogozhkin, Head of the FAS Department for Yamalo-Nenets Autonomous District. - But they are found and fined in the end anyway. The process is often complicated by the fact that banks, salons and numerous health centers do not distribute advertising independently, but entrust them to specialized structures - call centers, etc.
And it turns out they're, like, nothing to do with it. "We didn't send you anything." Actually, from a legal standpoint, it doesn't change anything. In any case, you have to have the subscriber's consent to send out the advertisement.
And the person who sent the spam replies. Thus, in Tyumen, a man from a VM_Hyundai subscriber received an SMS through the call center: "The new Hyundai Solaris with the benefit up to 184000 rubles. Only till March 31!"

As a result of the proceedings, liability was imposed on OOO "SMS Center", namely, a fine of 100 thousand rubles.
And what kind of contract exists between the auto center and the SMS center is already a matter of litigation between these structures.
Obviously, the parties know very well what they're doing when they make a deal with each other.

Commentary

Evgeny Strelnikov, Associate Professor of the Department of Financial Markets and Banking of Ural State University of Economics and Technology:

- The fact that the mechanism for counteracting spam advertisers is being debugged is certainly good.
But the root of the problem, in my opinion, is that we have wide access to personal data of citizens.
Once a person leaves his or her phone number or other personal information somewhere, he or she starts walking in various bases without any consent.
Advertising mailings are sometimes made on tens of thousands of phones.
Databases are being illegally resold. And for someone who distributes commercial messages, the risk that at least one person will go and claim their right to "advertising immunity" is actually low.
And the costs will pay off more than that.
It is necessary to recognize that so far no effective mechanism has been created to prevent the illegal distribution of personal data bases. And that's why the fertile ground for illegal mailings is also preserved.

How to act if you're pissed off:

  • Make sure you didn't authorize the advertising yourself. In some cases, when entering into a contract with, say, a bank or cellular company, you may have automatically signed the consent to the newsletter as well.
  • If not, contact the distributor of advertising, whether it is a bank, beauty salon, medical or car center, whatever. At your first verbal request, they must stop sending you spam. The same must be done by the service provider if they are distributing advertisements that you have not consented to.
  • In case spam keeps coming, you're on your way to UFAS. To prove that you have received illegal advertising, you should attach a photo of your phone display with text to your complaint, or a printout of your email or audio recording of your phone call. In addition, you will need a certified detailed statement from your service provider confirming the receipt of an SMS or call.
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