Ineffective Terms and Conditions of Pay-TV Provider Sky?

The Higher Regional Court (OLG) Munich had to decide whether the General Terms and Conditions of the pay-TV provider Sky permitted the private broadcaster to call its customers for advertising purposes or whether this advertising practice was to be regarded as anti-competitive.

The Federal Association of Consumer Centres (Bundesverband der Verbraucherzentralen e.V.) sent a cease-and-desist letter to the pay-TV provider Sky, as it considered the broadcaster's advertising practice to be anti-competitive. In particular, the competition association objected that Sky had not obtained separate permission to carry out advertising campaigns by telephone, fax and/or SMS. The association found the following Terms and Conditions clauses of the private broadcaster Sky to be ineffective:

I have taken note of Sky's Terms and Conditions, those of Kabel Deutschland, the revocation information and the data protection consent declaration, and confirm this by sending this form. By concluding this subscription agreement, the subscriber consents to Sky using the specified personal data for marketing purposes for its own product offerings by telephone, SMS, e-mail and post, as well as for market research purposes.

Sky did not issue an undertaking and allowed the matter to proceed to court, as the broadcaster was of the opinion that it was authorised to conduct such advertising measures through the terms of its Terms and Conditions.

Court Decision
The Higher Regional Court (OLG) Munich decided by Judgment of 21.07.2011 – Az. 6 U 4039/10 that the advertising practice carried out by the private broadcaster Sky was anti-competitive.

Companies must not present consumers with consent to advertising by telephone or SMS together with other declarations in the manner practised by Sky and have them signed. In the present case, the customers of the private broadcaster had to confirm by clicking on a box that they had taken note of the terms and conditions, the revocation declaration and a "data protection consent declaration". The latter contained the subscriber's consent to advertising by telephone, SMS, e-mail and post. However, such consent clauses are impermissible when bundled together with other declarations. For such consent to advertising measures to be effective, it must relate exclusively to the advertising.

Conclusion

Advertising measures by telephone, e-mail or SMS are only permitted if consumers have previously expressly consented to receiving such advertising in a separate declaration. The General Terms and Conditions of the pay-TV provider Sky did not satisfy these requirements for separate consent.