All SMS services are basically the same

Legal regulations for premium SMS

1. Introduction:

The diverse offers for premium SMS are known from television and print media: These are high-priced short messages that are sent to a five-digit speed dial. Cell phone logos, ring tones, single chats and similar services are offered for fees of typically EUR 0.29 to EUR 5 per SMS. Frequently, subscriptions are also sold with an SMS, i.e. with a short message you not only receive a ringtone, but a subscription to 100 ringtones.

Billing takes place either per SMS sent ("Mobile Originated Billing"), for example for competitions or flirting services, or per received message ("Mobile Terminated Billing"), e.g. when subscribing to news tickers.

There are no separate legal regulations for premium SMS: In principle, they can be freely tariffed; a maximum price limit is not set. The usual prices are between EUR 0.29 and EUR 5 per SMS. In theory, however, any other price is also possible. The price or billing method cannot be identified from the phone number.

The five-digit abbreviations are not assigned centrally by the Regulatory Authority for Telecommunications and Post (RegTP), but directly by the network operators in accordance with a joint agreement.

2. Conclusion of the contract:

As is well known, a contract comes about through two corresponding declarations of intent, namely through an offer and an acceptance. It has long been recognized that declarations of intent can also be submitted electronically, for example by pressing a button on the computer or on the phone.

From a legal point of view, the consumer submits an offer to the service provider to conclude a telephone service contract with an SMS to the five-digit abbreviated number. The contract is concluded when the service is provided, e.g. delivery of the ringtone or access to a flirt chat room. Under this contract, the user is obliged to pay the agreed price. The provider is in turn obliged to provide the service owed.

For the conclusion of the contract, the service provider is required to provide evidence (AG Aachen, ruling of 07.05.2004 - Az .: 81 C 629/03).

3. Price indication:

Since September 1, 2007, numerous new consumer protection regulations have come into force in the TKG.

In Section 66 a TKG there is now a comprehensive obligation to quote prices:

"Anyone who offers or advertises premium services, information services, mass transport services, shared cost services, innovative services or speed dialing services to end users, has to state the price to be paid for the use of the service, time-dependent per minute or time-independent per use, including sales tax and other price components When quoting the price, the price must be clearly legible, clearly visible and in direct connection with the phone number. When displaying the phone number, the price may not be displayed for a shorter time than the phone number. The conclusion of a continuing obligation is to be indicated. As far as the claim of a service according to sentence 1 for calls from the mobile networks prices that differ from the prices for calls from the fixed networks, the fixed network price is to be indicated with a reference to the possibility of different prices for calls from the mobile networks x services, the number of pages to be transmitted must also be specified. In the case of data services, the scope of the data to be transmitted must also be specified as far as possible, unless the amount of data to be transmitted has no effect on the price for the end user. "

Anyone who does not comply with this obligation to provide prices is not entitled to reimbursement of the value-added service charges incurred (Section 66 g TKG).

4. General Terms and Conditions (GTC):

The text "The general terms and conditions of company XY apply" is often used. The terms and conditions could regulate the price, the obligation to pay and other items, so that the price information in the short messages can possibly be omitted.

In principle, general terms and conditions must be effectively included in the contract (Section 305 (1) and (2) BGB). For this purpose, the other contracting party must be able to take note of the full text of the terms and conditions at the time the contract is concluded and be informed of this. Understandably, this cannot be the case in SMS, because such short text messages are not enough to reproduce the complete terms and conditions. As a rule, the terms and conditions are therefore not part of the contract. Any regulations do not have any legal effect.

General terms and conditions are only considered to be included in a special exceptional case: For this purpose, they must have been published in the official gazette of the RegTP in accordance with Section 305 a No. 2 a BGB and it must be impossible for the consumer to take note of them in any other way. According to the wording of the law, this special regulation applies to "telecommunications, information and similar services including means of distance communication." There is much to suggest that this also includes premium SMS. If the terms and conditions are published in the official gazette - which may only be the case with well-known and large service providers - they are considered to be included.
This does not affect the question of whether the clauses included in this way are also effective in terms of content or whether they do not violate applicable law.

5. Minors and premium SMS:

Children under 7 years of age are legally incapable of doing so (Section 105 (1) BGB). Your declarations of intent and thus your contracts are null and void. Minors over 7 years of age have limited legal capacity (Section 106 BGB). For all contracts, they generally require the consent of their parents (Section 107 BGB).

In practice, the network operators therefore only conclude a mobile phone contract with minors if the parents are either directly contractual partners or have agreed to the contract being concluded by the minor. If the parents are direct contractual partners, the actions of the minor are attributed to them according to the principles of the so-called proxy or tolerance of attorney.

6. Deceptions about circumstances:

Flirting services in particular are experiencing a major boom thanks to premium SMS: You can anonymously meet singles of the same age here via SMS contact exchanges. There are considerable doubts as to whether this is always the case. The LG Munich I (judgment of 17.06.03 - Az: 22 O 9966/03) was presented with such a case for assessment. The judges came to the following conclusion:

"It" [..], however, are all these SMS that go to the applicant's customers, sent from so-called call centers, (...) essentially pre-formulated by the applicant and are part of the paid work of the respective employees of this call Center. [...]

In any case, there is not the slightest indication that these employees [...] would in any way actually be interested in getting to know the applicant's customers better or even in meeting with them ".

In plain language: The contact to singles was faked in the case in order to induce customers to expensive SMS chats. This practice was clearly rejected by the court: It is unfair within the meaning of ยงยง 3, 4 No. 11 UWG. However, it should not be overlooked that this decision is an extremely individual case.