Do you still have to pay to unsubscribe from daily premium SMS? Court: 1 cents SMS unsubscribe fee to be borne by the platform

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Original title: “daily Youxian app sending commercial SMS case” adjudicated that the SMS unsubscribe fee should be borne by the platform ”
Source: Jingfa Internet Affairs wechat official account
According to the wechat official account of jingfa.com on October 22, after Ms. Wang registered to use “daily Youxian app”, the “daily Youxian app” sent a business message containing the promotion content of daily Youxian. Ms. Wang replied “n” according to the SMS guidelines to cancel the subscription, and spent 10 cents on SMS charges.
Ms. Wang believed that “daily Youxian app” agreed to push commercial advertisements in the form of a format contract, which infringed on its legitimate rights and interests. She sued Beijing Daily Youxian e-commerce Co., Ltd. (hereinafter referred to as “daily Youxian company”) to Beijing Internet court, demanding to confirm that the relevant contents in the user agreement and privacy policy of the company are invalid, and increase the number of users who refuse to send them The option of sending commercial advertisements provides an effective way to refuse commercial advertising information, and compensates 0.1 yuan of SMS fee due to unsubscribing from commercial promotion SMS.
All the pictures in this article are from Jingfa wechat official account
Recently, the first instance of the Beijing Internet court publicly ruled that the format contract signed by Ms. Wang and daily Youxian company was valid. It did not violate the agreement of both parties to push commercial SMS to Ms. Wang every day, but the SMS fee of 10 cents generated by Ms. Wang’s withdrawal of business promotion SMS should be borne by the daily Youxian company. In addition, the court ordered that the 25 yuan case acceptance fee should be paid by the We will inform you of the company’s burden. After the judgment, both parties did not appeal, and the defendant took the initiative to fulfill the judgment obligation during the appeal period. At present, the first instance judgment has come into effect.
Case review
After Ms. Wang registered to use the “daily Youxian app”, the company sent Ms. Wang commercial SMS on November 1, November 11, and November 15, 2019, respectively.
Ms. Wang replied to “n” three times on November 10, 2019 and November 15, 2019 to the daily Youxian company to unsubscribe. In the process of replying SMS to the number “1069 ¥ 5574”, the SMS fee was 0.1 yuan. After receiving the SMS unsubscribed by Ms. Wang, the company did not push the commercial SMS information to Ms. Wang.
Ms. Wang: the standard terms should be invalid, and sending commercial short messages repeatedly should be a breach of contract
Ms. Wang claims that Article 5.2 of the user agreement and Article 2 of the privacy policy agreed that commercial advertising information can be sent to users, which is a very typical format clause, excluding the main rights of consumers, and should be regarded as invalid. In addition, the company should modify its relevant terms and give consumers the option to refuse to accept the short messages of commercial advertisements when they agree to the user agreement and privacy policy. Secondly, Youxian company sends commercial short messages to Ms. Wang three times a day, and continues to send commercial messages after Ms. Wang sends the first unsubscribed SMS, which is a breach of contract. Finally, as a result of sending unsubscribed business promotion SMS, the SMS fee of RMB 0.1 should be borne by Youxian daily.
Daily Youxian company: there is no invalidity of the disputed terms in the contract between the two parties, and the sending of commercial promotion messages shall not be held responsible
Ms. Wang has agreed to the relevant terms of the user agreement and the privacy policy when she registered the “daily Youxian app”. Therefore, it is legal for the company to obtain Ms. Wang’s account information and send commercial promotion information according to the agreement, and there is no invalid situation. In addition, the company has timely blocked Ms. Wang’s mobile phone number in accordance with the relevant provisions of the user agreement and privacy policy. Ms. Wang received the “daily Youxian app” push message again because she failed to send the SMS successfully. The company has no fault.
The court found that
1、 Article 5.2 of user agreement and Article 2 of privacy policy are valid
Article 5.2 of the user agreement stipulates that:
Article 2 of the privacy policy states that:
The above two clauses clearly inform and prompt the contents of “order information, distribution service information and other information closely related to transaction and distribution” sent by Youxian company every day, and also provide the methods of “do not want to continue to receive”, “return or set to reject”. The contents of the terms themselves do not exempt the company from its responsibilities, increase the user’s responsibility, and exclude the main rights of the company’s users. Reasonable prompt is made in bold or underlined way, and the obligation of prompt is fulfilled. The above two articles are not invalid under the provisions of the contract law.
2、 Daily excellent fresh company provides the commercial advertisement rejection way to be effective
First of all, according to Article 2 of the privacy policy, Youxian daily provides users with three ways to refuse information. Ms. Wang has many ways to refuse to accept commercial advertisements.
Secondly, after Ms. Wang replied “n” unsubscribed SMS for the first time, the reason why Youxian company did not block Ms. Wang’s mobile phone number was that its background system did not receive the unsubscribed SMS. According to the detailed charge list of SMS, China Mobile does not charge the SMS fee. Therefore, the defense of daily Youxian company is based on facts. After Ms. Wang replied to “n” unsubscribed SMS again, the background system of Youxian daily automatically blocked Ms. Wang’s mobile phone number, labeled as “SMS blacklist”, and immediately stopped the short message push of commercial advertisement. It should be considered that the way of rejecting commercial advertising information provided by daily Youxian company is effective.
3、 Every day Youxian company sends short messages of commercial advertisements to Ms. Wang, which does not constitute a breach of contract
After investigation, Article 2 of the privacy policy stipulates that commercial advertisements should be pushed as follows:
The court held that the standard terms are still based on the agreement of both parties. In addition to violating the mandatory provisions of laws and regulations, once the standard terms are established, they will have binding force on both parties. The company also gave a reasonable prompt for the contents of the above agreement in the form of bold and underline, and agreed on three ways of refusing to push. The above terms should be deemed as effective. Therefore, every day Youxian company sends commercial advertising messages to Ms. Wang based on the contract, and there is no breach of contract.
4、 The charge of SMS cancellation is borne by Youxian daily

In this case, neither the user agreement nor the privacy policy has agreed on the cost burden caused by unsubscribing from business promotion SMS, which belongs to the fact that the content of the contract has no agreement, and the contract law can be applied to “if the burden of performance fee is not clear, the party performing the obligation shall bear it”. It can be seen from Article 2 of the privacy policy that it is a contractual obligation of the company to provide users with the optional service to stop pushing promotion messages, and the company is the party performing the obligation. According to the SMS unsubscribe guidelines, sending unsubscribed SMS is an act of refusing to receive, not an obligation. Therefore, Ms. Wang’s SMS fee of 0.1 yuan should be borne by Youxian daily.
The result of the first instance judgment:
1、 The defendant Beijing Daily Youxian e-commerce Co., Ltd. shall compensate the plaintiff Ms. Wang for the loss of SMS charges by RMB 0.1 within 10 days from the effective date of this judgment;
2、 Other claims of plaintiff Ms. Wang were rejected.
The case acceptance fee is 25 yuan, which shall be borne by Youxian company every day.
Judge’s statement
01
It should have a significant effect on the economic platform
The “daily Youxian app” operated by daily Youxian company pushes short messages of commercial advertisements to users, which is based on the relevant provisions in the user agreement and privacy policy of both parties. The relevant agreement is based on the “one to many” online shopping platform mode of the daily Youxian company, which is prepared in advance and reused for many members. It is economical, convenient and in line with the application characteristics of online shopping app. The content of the agreement itself does not exempt the company from its responsibilities, increase the user’s responsibility, and exclude the main rights of the company’s users. Reasonable prompt is made in bold or underlined way, and the obligation of prompt is fulfilled. The above two clauses shall also be deemed effective.
02
Platform service authorization mode should take into account user experience and transaction convenience
Due to the diversity and richness of Internet products, the universality and diversity of users, different users may have different expectations for Internet platform service experience. For example, in the shopping application software, some users dislike the product information push based on the user portrait, while others enjoy the convenience brought by the push. In order to meet the needs of different users and improve transaction efficiency, under the condition of clear prior notice and reasonable prompt, the Internet platform incorporates personalized and differentiated services such as information push into the authorization agreement of “package” platform, and then provides effective denial (authorization cancellation) methods according to different users’ needs, which is more in line with the characteristics of such Internet platforms and more conducive to each other The economic development of networking platform. If the Internet platform is required to prompt users to choose for each service, it will not only increase the transaction cost, but also lead to cumbersome procedures, and is not conducive to improving the user experience.
03
If there is no agreement, the fee for “unsubscribing business SMS” between Internet platform and users shall be borne by the platform providing unsubscribe service
At present, in order to improve the user experience and expand the business scope, the Internet platform often provides users with more diversified personalized and differentiated services in addition to basic services. This is the case with product information push based on user profile. The Internet platform can push commercial advertisements to users in accordance with the contract, but the SMS charges caused by users’ unsubscribing from business promotion SMS shall be borne by the platform that provides the unsubscribe service. In this case, it can be seen from the “privacy policy” agreement that it is a contractual obligation of the company to provide users with the optional service to stop pushing promotion messages, and the company is the party performing the obligation. According to the SMS unsubscribe guidelines, sending unsubscribed SMS is an act of refusing to receive, not an obligation. Therefore, Ms. Wang’s 0.1 yuan SMS fee should be borne by the daily Youxian company.