In recent years, the rapid development and growth of the telecommunications sector boosted innovation and led to an inevitable convergence in the information and communications technologies. This convergence of technologies produced an increasing variety of value added services ("VASs"). VASs can be described simply as those services beyond the core services of an operator, which are made available to consumers, usually at a low cost, and which help to promote the primary business.
The regulatory authorities, legislators and even the operators may lag in adapting themselves to the new requisites of the ever-evolving nature of telecommunication technologies, which eventually produce an ever-increasing number of VASs. Consumer complaints play an important role in triggering the required adaptation processes.
On December 12, 2016, the Information and Communication Technologies Authority ("ICTA"), which is the main regulatory and supervisory authority for the telecommunications sector in Turkey, issued a press release introducing a new regulation based on the increasing number of complaints received from consumers. These complaints were mainly focused on the unexpectedly high bills that consumers receive, due to subscriptions and purchases which they had made unintentionally.
Consumers come across certain websites while surfing on the internet, which direct or subscribe them to other services (VASs), and they may involuntarily subscribe to such services or make purchases without actually understanding the conditions, prices and termination procedures that they are agreeing to. Consumers usually do not even know or are not provided with the information regarding the identity of the relevant service's provider. These unintended subscriptions and purchases sometimes happen when a consumer just intends to close an ad that appears on his/her screen. When the costs of these subscriptions and purchases are reflected on their invoices, consumers object to them or file complaints against those who, in their view, cheated them out of their money. In most of these cases, such VASs are not provided by the operators themselves, but by third parties who are not under the supervision of the ICTA. This has relieved the operators from liabilities arising from such services so far.
However, due to the increasing number of complaints received, the ICTA decided to set out the conditions and liabilities pertaining to VASs that are provided through electronic communication services. Accordingly, the ICTA issued the "Principles and Procedures on Protection of Consumer Rights in the Provision of Value Added Electronic Communication Services" ("VAS Principles"), which aim to establish transparency at all stages of subscriptions and purchases pertaining to VASs, ensuring that the consumers are informed of the terms and conditions of services and the prices of subscriptions. The VAS Principles also create a legal framework to ensure that the consumers' intention in whether or not to subscribe to or purchase VASs may be clearly determined.
VAS Principles do not directly impose obligations on the providers of VASs, but instead require the disputes to be resolved by the operators and further obliges the operators to provide consumers with certain information and verification or approval procedures, which will allow them to decide whether or not to subscribe to a VAS with free will, regardless of whether that service is provided by the operator or by a third party.
VAS Principles provide the operators with obligations to prevent unintended online subscriptions as a result of the consumers' closing down of an ad or promotion appearing on the screen. If a consumer does purchase an unintended subscription, there are rules for preventing the subscribed operator from directing the consumer to a third party for recourse, and obliging the operator to find a solution to the complaint.
VAS Principles clarify that the obligation of informing the consumer of the price and service conditions of the VASs, as well as the burden of proof with regard to the consumer's consent, is on the operator. Consumers will have the right to be reimbursed for the payments they make for the unintended subscriptions, if the operator fails to comply with its obligation to provide information and to prove consent procedures.
Consumers will be able to ask the operators to disable their accounts for mobile payments or VASs, per the VAS Principles. Most importantly, the procedures for purchasing or cancelling VASs are regulated separately and in detail for purchases conducted through the internet, SMS, mobile internet/WAP, and incoming/outgoing calls. Below are brief summaries of each procedure:1
- VASs purchased through the internet:
The service provider will be obliged to give information about the name and conditions of the service, the price, and a space for the consumer to provide a mobile number if they wish to purchase a subscription or a one-time service. The service provider will send an SMS including the price of the service along with a password, and the consumer will insert that password into the relevant website. Once the password is confirmed, the consumer will be charged for the purchase.
- VASs purchased through mobile internet/WAP:
Consumers will click on the "confirm" box to purchase a service through the internet/WAP website, wherein detailed information will be given based on the service provided. Then, the consumer will insert the password, which is generated through the operator that the consumer is subscribed to, into the relevant space.
Alternatively, the consumer may provide his/her mobile phone number to the relevant website and receive an SMS including the password, which will later be inserted to the relevant part in the page accessed through mobile internet/WAP for the purchase of the VAS.
- VASs purchased through SMS:
For one-time purchases, the consumer will insert a keyword required for the purchase of the service in an SMS message, send it to the number provided by the operator and will purchase the VAS. For subscriptions, a two-step verification system is required, which will consist of two SMS messages requiring consent in two stages.
- VASs purchased through phone calls:
Information regarding the services provided and the pricing mechanism will be provided to the consumer and the consumer may request listening to the information once again, all free of charge. The purchase will be completed if the consumer provides his/her confirmation or waits for the signal. The consumer will then purchase the service and fees will be reflected on the subscriber's bill.
VAS Principles also set forth cancellation procedures to be followed regarding the foregoing purchase and subscription processes.
It appears that the VAS Principles will impose significant obligations on the operators and will require them to amend their current procedures, which might require time and investment. Therefore, the effective date of the VAS Principles was established as June 30, 2017, giving the operators an adequate transition period to put the required structures into place.
(1) https://tuketici.btk.gov.tr/tr-TR/Haber/katma-degerli-hizmetler accessed on 12 February 2017.
This article was first published in Legal Insights Quarterly by ELIG, Attorneys-at-Law in March 2017. A link to the full Legal Insight Quarterly may be found here.
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