list of contributors - GALA

5. Topic: Permission to market by text message can not be requested with a text
message
Who: The Supreme Court
When: March 2005
What Happened: In February 2002 Aller Julkaisut Oy had sent text messages to consumers, in
which they inquired if they could send a special offer of a magazine via text
message to the recipients. The special offer was not sent if the recipient did
not react to the message or rejected the special offer. According to the Act on
the Protection of Privacy and Data Security in Telecommunications
(565/1999), telecommunications may not be used for direct marketing
without the prior consent of the subscriber if the calls are made by means of
automated calling systems or facsimile machines. The main issue in this case
was, should the text message sent by Aller Julkaisut Oy be deemed to be
direct marketing or was the message just an inquiry for prior consent for
direct marketing, which is not prohibited. The defendant claimed that the
only purpose of the text message was to ask prior consent from consumers.
They emphasized that the text message, which was sent to the consumers,
did not include any information of the price or subscription period. They also
pointed out, that the message did not contain any glowing phrases praising
the product, which is typical in marketing material.
The Supreme Court stated that the concept of marketing should be treated
broadly. Simply mentioning the name of the product or displaying the
picture of the product may be viewed as marketing, if the purpose is to
promote the sale of the product. According to the Supreme Court, marketing
can also be carried out in several phases. The Supreme Court found that the
purpose of the sent message was clearly to promote the sale of the magazine
and that the consumer would accept the special offer and later subscribe to
the magazine. Although the consumer would not necessarily even reply to
the message, the mention of the magazine’s name enhances the publicity of
the magazine and relates to advertising. Due to the aforementioned, the
Supreme Court found that sending text messages to inquire if the consumer
would like to have more information about a product is considered direct
marketing. The use of this kind of direct marketing requires prior consent of
the consumer. The Supreme Court found that the conduct of Aller Julkaisut
Oy was contrary to the Act on the Protection of Privacy and Data Security in
Telecommunications as well as inappropriate under the Consumer
Protection Act (38/1978).
Comments: The Act on the Protection of Privacy and Data Security in
Telecommunications (565/1999) has been repealed by the Act on the
Protection of Privacy in Electronic Communications (516/2004). According to
the new Act, if a company obtains from any customer who is a natural
person, the customer’s mobile phone number in the context of the sale of a
magazine, it may use this contact information for direct marketing of any
other magazine published by the company by sending text messages to the
customer, provided that the customer has not prohibited such marketing.
6. Topic: Competence of the Market Court to prohibit the sale of products under the
Unfair Business Practices Act
Who: The Market Court (and the Supreme Court)
When: March 2005
What Happened: LEGO Companies initiated proceedings before the Market Court against
Biltema Suomi Oy claiming that Biltema was violating good business