June 14, 2012 at 12:58What to do if tired of SMS advertising?
Probably, many are familiar with the situation when an alert sounds that an SMS message has arrived on a mobile phone. And now, opening an SMS message, we see that some organization sent us an advertisement. Well, if you really subscribed to this newsletter.
The first thing you should know is that any advertising mailing via SMS messages without your prior consent is a violation of Part 1. of Art. 18 of the Federal Law of 13.03.2006 N 38-ФЗ “ On Advertising ”:
“Article 18. Advertising distributed over telecommunication networks
1. Distribution of advertising on telecommunication networks, including through the use of telephone, facsimile, mobile radiotelephone communications, is allowed only with the prior consent of the subscriber or addressee to receive advertising. In this case, advertising is recognized as distributed without the prior consent of the subscriber or addressee, unless the advertising distributor proves that such consent has been obtained. The advertising distributor is obliged to immediately stop the distribution of advertising to the person who has applied to him with such a request. ”
Under advertising, in accordance with Art. 3The law means any information distributed in any way, in any form and using any means, addressed to an indefinite number of persons and aimed at attracting attention to the object of advertising, the formation or maintenance of interest in it and its promotion on the market.
The easiest and fastest way is to call the phone number indicated in the SMS message and ask to be excluded from this newsletter. Very often this method works, and you will no longer be bothered. But what if the SMS message does not contain the contact information of the person sending the SMS messages, or you continue to receive SMS messages, despite promises to exclude you from the database?
In this case, you should apply to the territorial authority of the Federal Antimonopoly Service (FAS) at your place of residence. Addresses and links to the sites of the territorial bodies of the Federal Antimonopoly Service can be found here .
You can send a statement (complaint) via postal service or directly through the Internet reception of the territorial authority of the FAS. The procedure for applying to the FAS or its territorial body can be found here .
In your application (complaint) you will need to indicate the following information:
1. Your mobile number. Moreover, it is worth noting that the FAS employees have the right to ask you for supporting documents that the mobile operator concluded an agreement with you on the provision of services for this number.
2. The mobile operator you are using.
3. The date and time of receipt of SMS messages with advertising.
4. The sender of this SMS message.
5. The text of the advertising message.
6. To make it easier for the FAS to find the person sending the advertising messages, you can spend 5 minutes and use the search to determine who owns the phone number indicated in the advertising message or how to identify the sender of such a message.
For example, if you have specified “SHATURA” as the sender, and furniture is advertised in your SMS messages, then with 99% certainty we can say that this distribution is carried out by representatives of Shatura Furniture Company OJSC.
As a result, you can write in a statement (complaint) that, in your opinion, advertising is carried out by the company Shatura Furniture Company OJSC, and you ask to verify this information. If you have received advertising messages repeatedly, this should also be added to your application (complaint).
The operative part of your statement should indicate that the newsletter is in violation of part 1. of article 18 of the Advertising Act was carried out by both the sender and the mobile operator without your consent. The mobile operator should also be held responsible for violations of advertising legislation. This conclusion is confirmed by arbitration practice. So, the Moscow Arbitration Court in case No. A40-77128 / 11-153-690 when considering a complaint of Vimpel-Communications and Mobile Dialogue LLC against decisions of the Federal Antimonopoly Service (FAS Russia) dated June 9, 2011 in the case No. RC.08.11.10 / 1 and in case No. RC.08.11.10 / 2 on bringing the above persons to administrative responsibility indicated:
“Thus, it follows from the materials of the case and the court found that the information distributed in the Beeline network has all the signs of advertising, since this information was sent to an indefinite number of people, since it is not clear from the text of the information messages for whom this message was created and to the perception of whom this message is directed; It is aimed at attracting attention to the services of Mobile Dialogue LLC, which it offers within the framework of the SMS Luck incentive lottery, which aims to maintain the interest of subscribers of Vympel-Communication Open Joint-Stock Company in the services of Mobile Dialogue LLC and their promotion on the market .
VimpelCom OJSC did not provide evidence of a citizen's prior consent for the distribution of advertising. Accordingly, these SMS messages in violation of Part 1 of Article 18 of the Federal Law "On Advertising" were delivered to subscribers without prior consent of subscribers to receive it. "
The appellate and cassation instance upheld this decision. Moreover, the court of cassation in its ruling of April 27, 2012 stated:
“Thus, Vympel-Communications OJSC was an advertising distributor, since, within the framework of the agreements, it carried out the actual communication of the incentive lottery to consumers . ”
The FAS is obliged to conduct an audit on your application and, based on its results (at least), issue an order to the person sending the SMS message to terminate the violation of Part 1. of Art. 18 of the Advertising Act. If this newsletter continues even after the issuance of the Order on the cessation of violation, the person sending these messages must be held accountable under paragraph 1. Article 14.3 of the Code of Administrative Offenses.
Violation of the legislation on advertising by the advertiser, advertising producer or advertising distributor, with the exception of cases provided for in parts 2 to 4 of this article, articles 14.37, 14.38, 19.31 of this Code - shall entail the imposition of an administrative fine on citizens in the amount of from two thousand to two thousand five hundred rubles; for officials - from four thousand to twenty thousand rubles; for legal entities - from one hundred thousand to five hundred thousand rubles.
So, we figured out what and where to write when receiving advertising SMS messages.
By your name or surname, and you did not allow the sending of advertising messages to your address, and also do not even suspect where the sender came from your personal data. In this case, we can say that the sender uses (processes) your personal data in violation of the Federal Law of July 27, 2006 N 152-ФЗ “ On Personal Data ” which states that the use of personal data should be carried out only with your consent.
In this case, you should apply with the appropriate application to the territorial authority of Roskomnadzor at your place of residence. Addresses and links to the sites of the territorial bodies of Roskomnadzor can be found here .
You can send a statement (complaint) via postal service or directly through the Internet reception of the territorial authority of Roskomnadzor. The procedure for contacting Roskomnadzor or its territorial body can be found here .
The application (complaint) submitted to Roskomnadzor should indicate the same thing as when submitting the application (complaint) to the FAS. The only thing, instead of indicating a violation of the Law on Advertising, you need to indicate that the sender uses your personal data without obtaining your consent.
Using the links you can find the answers of the FAS and Roskomnadzor on the fact of contacting them when sending SMS messages without the consent of the addressee.
We will be happy to answer questions!
But what to do if you did not subscribe, and they regularly send you advertisements via SMS?
The first thing you should know is that any advertising mailing via SMS messages without your prior consent is a violation of Part 1. of Art. 18 of the Federal Law of 13.03.2006 N 38-ФЗ “ On Advertising ”:
“Article 18. Advertising distributed over telecommunication networks
1. Distribution of advertising on telecommunication networks, including through the use of telephone, facsimile, mobile radiotelephone communications, is allowed only with the prior consent of the subscriber or addressee to receive advertising. In this case, advertising is recognized as distributed without the prior consent of the subscriber or addressee, unless the advertising distributor proves that such consent has been obtained. The advertising distributor is obliged to immediately stop the distribution of advertising to the person who has applied to him with such a request. ”
Under advertising, in accordance with Art. 3The law means any information distributed in any way, in any form and using any means, addressed to an indefinite number of persons and aimed at attracting attention to the object of advertising, the formation or maintenance of interest in it and its promotion on the market.
The easiest and fastest way is to call the phone number indicated in the SMS message and ask to be excluded from this newsletter. Very often this method works, and you will no longer be bothered. But what if the SMS message does not contain the contact information of the person sending the SMS messages, or you continue to receive SMS messages, despite promises to exclude you from the database?
In this case, you should apply to the territorial authority of the Federal Antimonopoly Service (FAS) at your place of residence. Addresses and links to the sites of the territorial bodies of the Federal Antimonopoly Service can be found here .
You can send a statement (complaint) via postal service or directly through the Internet reception of the territorial authority of the FAS. The procedure for applying to the FAS or its territorial body can be found here .
In your application (complaint) you will need to indicate the following information:
1. Your mobile number. Moreover, it is worth noting that the FAS employees have the right to ask you for supporting documents that the mobile operator concluded an agreement with you on the provision of services for this number.
2. The mobile operator you are using.
3. The date and time of receipt of SMS messages with advertising.
4. The sender of this SMS message.
5. The text of the advertising message.
6. To make it easier for the FAS to find the person sending the advertising messages, you can spend 5 minutes and use the search to determine who owns the phone number indicated in the advertising message or how to identify the sender of such a message.
For example, if you have specified “SHATURA” as the sender, and furniture is advertised in your SMS messages, then with 99% certainty we can say that this distribution is carried out by representatives of Shatura Furniture Company OJSC.
As a result, you can write in a statement (complaint) that, in your opinion, advertising is carried out by the company Shatura Furniture Company OJSC, and you ask to verify this information. If you have received advertising messages repeatedly, this should also be added to your application (complaint).
The operative part of your statement should indicate that the newsletter is in violation of part 1. of article 18 of the Advertising Act was carried out by both the sender and the mobile operator without your consent. The mobile operator should also be held responsible for violations of advertising legislation. This conclusion is confirmed by arbitration practice. So, the Moscow Arbitration Court in case No. A40-77128 / 11-153-690 when considering a complaint of Vimpel-Communications and Mobile Dialogue LLC against decisions of the Federal Antimonopoly Service (FAS Russia) dated June 9, 2011 in the case No. RC.08.11.10 / 1 and in case No. RC.08.11.10 / 2 on bringing the above persons to administrative responsibility indicated:
“Thus, it follows from the materials of the case and the court found that the information distributed in the Beeline network has all the signs of advertising, since this information was sent to an indefinite number of people, since it is not clear from the text of the information messages for whom this message was created and to the perception of whom this message is directed; It is aimed at attracting attention to the services of Mobile Dialogue LLC, which it offers within the framework of the SMS Luck incentive lottery, which aims to maintain the interest of subscribers of Vympel-Communication Open Joint-Stock Company in the services of Mobile Dialogue LLC and their promotion on the market .
VimpelCom OJSC did not provide evidence of a citizen's prior consent for the distribution of advertising. Accordingly, these SMS messages in violation of Part 1 of Article 18 of the Federal Law "On Advertising" were delivered to subscribers without prior consent of subscribers to receive it. "
The appellate and cassation instance upheld this decision. Moreover, the court of cassation in its ruling of April 27, 2012 stated:
“Thus, Vympel-Communications OJSC was an advertising distributor, since, within the framework of the agreements, it carried out the actual communication of the incentive lottery to consumers . ”
The FAS is obliged to conduct an audit on your application and, based on its results (at least), issue an order to the person sending the SMS message to terminate the violation of Part 1. of Art. 18 of the Advertising Act. If this newsletter continues even after the issuance of the Order on the cessation of violation, the person sending these messages must be held accountable under paragraph 1. Article 14.3 of the Code of Administrative Offenses.
Violation of the legislation on advertising by the advertiser, advertising producer or advertising distributor, with the exception of cases provided for in parts 2 to 4 of this article, articles 14.37, 14.38, 19.31 of this Code - shall entail the imposition of an administrative fine on citizens in the amount of from two thousand to two thousand five hundred rubles; for officials - from four thousand to twenty thousand rubles; for legal entities - from one hundred thousand to five hundred thousand rubles.
So, we figured out what and where to write when receiving advertising SMS messages.
But what if the advertising SMS message refers to you personally?
By your name or surname, and you did not allow the sending of advertising messages to your address, and also do not even suspect where the sender came from your personal data. In this case, we can say that the sender uses (processes) your personal data in violation of the Federal Law of July 27, 2006 N 152-ФЗ “ On Personal Data ” which states that the use of personal data should be carried out only with your consent.
In this case, you should apply with the appropriate application to the territorial authority of Roskomnadzor at your place of residence. Addresses and links to the sites of the territorial bodies of Roskomnadzor can be found here .
You can send a statement (complaint) via postal service or directly through the Internet reception of the territorial authority of Roskomnadzor. The procedure for contacting Roskomnadzor or its territorial body can be found here .
The application (complaint) submitted to Roskomnadzor should indicate the same thing as when submitting the application (complaint) to the FAS. The only thing, instead of indicating a violation of the Law on Advertising, you need to indicate that the sender uses your personal data without obtaining your consent.
Using the links you can find the answers of the FAS and Roskomnadzor on the fact of contacting them when sending SMS messages without the consent of the addressee.
We will be happy to answer questions!