Abusive clauses in B2C IT contracts, case XVII AmA 192/10

April 9th, 2010, Tomasz Rychlicki

Eller Service s.c., the owner of hosting service available at pobieraczek.pl website advertised its business using slogans suggesting that the hosting and downloading of different files (mostly copyrighted material) is free. Advertising banners displayed “10 days to download for free” and “Yes, I want to test for 10 days”. However, users who wanted to host or to download files had first to register on the site, giving their name, address, date of birth and e-mail. The requirement was also to accept of the Terms of Service. The user registration date was also the first day of consideration of the contract which was concluded even for a year. In addition, the payment was charged from day one, and not, as the advertising slogans suggested after 10 days.

Following numerous complaints, the President of the Office of Competition and Consumer Protection initiated investigation proceedings based on article 4(1) and (2) and article 5(1) of the Polish Act of 23 August 2007 on combating unfair commercial practices – CUCP – (in Polish: ustawa o przeciwdziałaniu nieuczciwym praktykom rynkowym), Journal of Laws (Dziennik Ustaw) No. 171, item 1206.

Article 4
1. A commercial practice used by a trader in relations with consumers shall be unfair whenever it is contrary to good customs and significantly distorts, or may distort, the economic behavior of the average consumer prior to, during or after the conclusion of a product contract.
2. In particular, a commercial practice shall be regarded as unfair whenever it is misleading or aggressive and whenever a code of conduct is used that is contrary to law, if such activities meet the conditions set forth in section 1 above.

Article 5
1. A commercial practice shall be regarded as a misleading action if, in any way, it causes, or may cause, an average consumer to take a transactional decision, which he/she would not have otherwise taken.

The President of the Office of Competition and Consumer Protection, Wrocław Delegacy, in a decision of 31 March 2010, no. RWR 61-23/09/ZK, ruled that Eller Service s.c. was involved in practice infringing collective consumer interests. The President imposed a fine of up to 119.570 PLN paid into the state budget on each of the two partners of a civil partnership who runs the questioned business activity.

Eller Service s.c. filed a complaint against this decision but it was dismissed by the Court of Competition and Consumer Protection in its judgment of 27 February 2012 case file XVII AmA 192/10. The Appeallate Court in Warsaw in its judgment of 27 March 2013 dismissed the appeal.

See also “Polish regulations on prohibited contractual provisions” and “Polish case law on abusive clauses in B2C IT and IP contracts“.