ANACOM analysed a set of complaints, referring to various providers of electronic communications services, about the activation, allegedly without prior request or consent from the end-user, of additional mobile data caps after the initial cap included in the pricing period of the contracted tariff had been reached. In most cases, complaints refer to tariffs for mobile telephone service with Internet access, as well as the mobile Internet access service.
Accordingly, ANACOM took steps to obtain additional information about this practice, collecting information available on the websites of the companies mentioned in the analysed complaints. It also sent these companies requests for clarification. The evidence gathered by ANACOM confirmed the existence of tariffs where additional mobile data caps are being activated after the initial cap included in the contracted pricing period has been reached, without a prior and specific request from the end-user and without the end-user giving their consent to the activation of each of these additional caps, immediately before or after the initial cap is reached. From the responses received from companies to the requests for clarification sent by ANACOM, it appears, in summary and in general, that the companies engaging in this practice consider that consent to the automatic activation of additional communications caps is given by the end-user upon conclusion of the contract, insofar as automatic activation of additional caps is provided for in the contractual conditions (general or specific), in the contract summary, or corresponds to a characteristic of the tariff.
In this context, and after a detailed analysis of the matter, ANACOM considers that practices such as described above are not in line with the general principle of good faith, as set out in article 3 of Lei dos Serviços Públicos Essenciais (Essential Public Services Law). The practice could also be classified as an unfair commercial practice under the terms of paragraph 1 of article 5 of the Regime applicable to Unfair Commercial Practices and as prohibited by article 4 of this Law.
Furthermore, the above practice does not present itself as a commercial practice that is proportional to the offer made available when the contract is signed, renewed or amended, as it creates a further imbalance in the contractual relationship in favour of the company providing the service; this imbalance can be deduced from the outset by the fact that the characteristics of the practice in question do not comply with article 9-A of Lei de Defesa do Consumidor (Consumer Protection Law) and does not comply with articles 15 and 16 of Regime Jurídico das Cláusulas Contratuais Gerais (Legal Regime of General Contractual Clauses), in conjunction with point d) article 19 of the same law.
Therefore, it is concluded that any provision in subscription contracts for the automatic activation of additional caps, without a specific and prior request from the end-user or their specific and prior consent, other than in the context of subscribing to the service and inherent acceptance of general contractual clauses, is likely to i) lead to unintended charges and consumption by end-users, or ii) lead to situations where the end-user does not consumer any of the additional cap that is activated.
In this respect, ANACOM approved a draft decision on the application of a corrective measure relating to the practice of automatic activation of additional communications caps without prior request or consent from the end-user, ordering the following:
- the immediate cessation of the practice of automatic activation of additional communications caps, specifically for mobile data, except where end-users have expressly and specifically requested or consented to said activation, immediately before or after the cap included in the tariff is reached; or
- alternatively, its adaptation, specifically by presenting the automatic activation of additional communications caps as an option that may be freely selected, expressly and actively, by end-users upon conclusion of the contract – or in compliance with this determination, in the case of contracts in execution -, instead of end-users being required to expressly refuse this activation and consequent charge, and provided that the end-user is able, in an easy and expeditious manner, to limit the number and/or volume of additional caps to be activated, and is subsequently able to retract this option, if desired.
This draft decision is subject to a prior hearing of interested parties and public consultation. Accordingly, contributions in response to the public consultation should be submitted no later than 02 April 2024, in writing and in Portuguese, to ativacaoautomatica@anacom.pt.
Once the consultation process has been concluded, the contributions received will be made public. Therefore, for the purposes of publication on this website, interested parties should also submit a non-confidential version of their responses excluding any items considered confidential.
Consult:
- Approval of the draft decision to apply a corrective measure relating to the practice of automatic activation of additional communications caps without prior request or consent from the end-user https://www.anacom.pt/render.jsp?contentId=1775139
- Consultation regarding the application of a corrective measure relating to the practice of automatic activation of additional communications caps without prior request or consent from the end-user https://www.anacom.pt/render.jsp?contentId=1775165
