Jinqiao Law Talk 17 1 Thematic sharing on laws and regulations in the telecommunications industry

Case 1: Advertising an error during the promotion period

The company published the public card recharge discount in the newspaper, and mistakenly published the activity period from May 11 to May 31 as May 1 to May 8, and the customer did not enjoy the corresponding discount after recharging during the preferential period published in the newspaper. The customer complained that the company's behavior was "commercial fraud" and demanded that the company bear the corresponding responsibility.

Question 1: Does the company constitute a breach of contract with respect to the customer?

Combined with the above circumstances, the company constitutes a breach of contract. Since the company publishes this kind of "user-operated" business advertisement, legally speaking, it belongsOffer, the customer handles the business is deemed to beCommitment, both sidesConclude a contract

Question 2: If the company issues a change statement or error correction notice in a timely manner, will it still bear legal responsibility?

Assuming that the company issues a notice of correction or a statement of change on May 3 (the announced preferential period is from May 1 to May 8), the legal consequences of the following situations are completely different:

a.For users who recharge on May 2, because the company's advertisement is an offer, and the customer's recharge is a commitment, the two constitute a contract, and the company should of course perform its obligations according to the contract, otherwise it constitutes a breach of contract.

b.For users who recharge on May 4, because the company has issued a correction statement or notice, changed the original offer, and generated a new offer, the company does not need to fulfill the original advertising content, but fulfills the new advertising content.

Question 3: If the company does not issue a change statement in a timely manner and does not follow the wrong preferential period, does it constitute false advertising?

What is false advertising? That is, the content of the advertisement is false or misleading. One is that the content of the product promotion is inconsistent with the objective facts of the product, and the other is the product promotion that will make people have wrong associations with the real situation of the product, thus affecting their purchase decisions.

In the case that the company fails to publish the error correction notice and statement in a timely manner, if the preferential period of the advertisement is not implemented, the preferential plan in the company's advertisement is inconsistent with the actual situation, which constitutes false advertising.

Q4: Does the company's failure to issue a change statement in a timely manner and not follow the wrong offer period constitute fraud?

What is fraud? That is, where one party deliberately informs the other party of false information, or deliberately conceals the true situation, inducing the other party to make a false expression of intent, it may be found to be fraudulent.

Article 19 of the Provisions on Clearly Marking Prices and Prohibiting Fraud Operators shall not carry out the following fraudulent acts: (5) Refusing to perform or not fully fulfilling the ** commitment without justifiable reasons.

According to the above provisions, the company's actions constitute fraud, so what are the consequences?

Article 55 of the "Consumer Rights and Interests Protection**: Where proprietors commit fraud in providing goods or services, they shall increase compensation for the losses suffered by consumers in accordance with consumers' requests, and the amount of compensation increased shall be three times the price of the goods purchased by the consumers or the fees for the services they received; Where the amount of increased compensation is less than 500 RMB, it is 500 RMB. Where the law provides otherwise, follow those provisions.

Case 2: The advertisement does not indicate special circumstances

In the company's external publicity of 12593, it was explained: "If you dial 12593 for domestic long-distance ** in the province, you can enjoy 0."39 yuan minutes (all inclusive). "The customer dialed 1259301012300 in the province, and the company did not charge according to the provisions of the advertisement, and the customer demanded double compensation.

Background information: 01012300 is a complaint from the Ministry of Information Industry**, not a personal number, not within the scope of the 12593 preferential Shinkansen tariff plan.

Question: Is it fraud?

Article 19 of the Provisions on Clearly Marking Prices and Prohibiting Fraud Operators shall not carry out the following fraudulent acts: (5) Refusing to perform or not fully fulfilling the ** commitment without justifiable reasons.

1.There is no indication in the external advertising that the special number is not included in the offer;

2.039 yuan minutes (all inclusive).

It can be determined that it is fraud, and the compensation is tripled.

Case link: Shenzhen telecom operator series fraud case.

Health doubles false propaganda case.

Shenzhen Telecom used the phrase "halved tariff, double health" in the external publicity of a certain tariff**, and the industrial and commercial department believed that although the tariff was halved, consumers did not get the benefits of doubling health, so it was determined that it was fraudulent.

Case of false labeling of the original price.

Shenzhen Unicom marked the original price of ** yuan and the current price of ** yuan in the sale of mobile phones to show the strength of the discount, but the industrial and commercial department believed that the original price was fictitious and had not been sold according to the original price, so it was determined that it was fraudulent.

Tariff promotion does not include basic call charges.

Shenzhen Netcom only indicated the IP tariff in the tariff promotion of IP***, and did not indicate the basic call fee, and the industrial and commercial department believed that it deliberately did not mark the basic call fee, misleading consumers to think that the basic call fee was not charged, so it was determined that it was fraudulent.

This newspaper: Obviously only sent a text message, but the other party received it 300 times in a row. Yesterday, Ms. Wang, a citizen, called reporters and said that she did not expect that one of her text messages almost "paralyzed" her friend's mobile phone.

Ms. Wang told reporters that on the evening of the 23rd, a friend who was far away in Shanghai suddenly called ** and said that she had received a chat text message sent to her by Ms. Wang the day before, and she had received it 300 times. Friends said that this phenomenon will not occur when changing mobile phones, but as long as the SIM card is inserted into their mobile phones, text messages will come one after another. Ms. Wang wondered after hearing this, this text message was obviously written by herself, and she did not send it again, how could this happen? Will the communication provider charge 300 SMS?

*: Xiaogan Evening News.

The Company and the Customer are obliged to ensure that the relevant service facilities are functional, to achieve the purpose of the service, and to investigate any problems with the Service.

If it is indeed a problem of the company, compensation should be made.

Question 2: Does a journalist have the right to view the history of text messages sent?

The records of sending short messages involve the secrets of the company's and individuals' communications, and the company cannot provide them without authorization, except for the public security and law departments, and journalists have no right to access them.

Case 2: If I can't send a text message on the thirtieth day of the Chinese New Year's Eve, do I need compensation?

The company has an obligation to provide mobile communication services appropriately, but is it necessary to ensure that the service is not problematic at all times?

The Telecommunication Service Specification clarifies the statutory technical standards for telecommunication services: "22.6 The success rate of mobile point-to-point short message sending, the success rate of mobile point-to-point short message sending is 99. The success rate of mobile peer-to-peer short message sending refers to the probability that the message sender sends a message to the receiver (in the normal receiving state). ”

As long as the company's mobile peer-to-peer SMS delivery success rate is 99, that is, it meets the requirements of the state, and the state does not stipulate that the success rate of mobile point-to-point SMS sending must be 100%.

Case 3: On September 3, 2010, the failure of HSTP in Guangdong caused the user to be unable to call normally when roaming outside the province, and the customer demanded compensation!

Chapter III of the Telecommunications Regulations of the People's Republic of China.

Article 32: Where telecommunications users file a complaint for an obstruction in telecommunications services, the telecommunications operator shall repair or transfer it within 48 hours in urban areas and 72 hours in rural areas from the date of receipt of the report; If it cannot be repaired or adjusted on time, the telecommunications user shall be promptly notified, and the monthly fee for the period of the obstacle shall be waived. However, there is an exception for telecommunication service obstruction caused by reasons belonging to telecommunications terminal equipment.

Decree No. 36 of the Ministry of Information Industry of the People's Republic of China "Telecommunication Service Specification".

2.1.5 Time limit for fixing mobile** communication barriers.

The average is 24 hours, and the maximum is 48 hours.

The time limit for fixing mobile** communication barriers refers to the time required from the time when the user files a complaint for the obstacle to the time when the obstacle is removed or the normal communication of the user is restored by other means. Mobile**Communication impairment refers to impairment caused by non-mobile phone causes.

The monthly fee for the barrier-free period is calculated as follows: Duration of the barrier (hours or days) Monthly fee for hours or 30 days.

Note: If the obstacle lasts less than 12 hours, press 05 days counted.

Chapter 5 of the Telecommunications Regulations of the People's Republic of China.

Article 56: Telecommunications networks must not be used by any organization or individual to produce, reproduce, publish, or disseminate information containing the following content:

1) Opposing the basic principles set forth in the Constitution;

2) Endangering the disclosure of state secrets, subverting state power, or undermining national unity;

3) harming the honor and interests of the state;

4) Inciting ethnic hatred or ethnic discrimination, or undermining ethnic unity;

5) Undermining state religious policies or advocating cults and feudal superstitions;

6) Spreading rumors, disrupting social order, or undermining social stability;

7) Disseminating pornography, gambling, violence, terror, or instigating crimes;

8) Insulting or slandering others, infringing upon the lawful rights and interests of others;

9) Contains other content prohibited by laws or administrative regulations.

Question 2: What should I do with illegal text messages?

Article 61 of the "Telecommunications Regulations" In the course of public information services, if a telecommunications operator discovers that the information transmitted in a telecommunications network clearly belongs to the content listed in Article 56 of these Regulations, it shall immediately stop the transmission, keep relevant records, and report to the relevant state organs.

Article 62: Telecommunications users are responsible for the content and consequences of using telecommunications networks to transmit information.

Carrier – Stop sending, and report.

Whoever sends is responsible.

Question 3: Is the company responsible for illegal SMS?

After receiving a complaint from a customer, the company has the obligation to intercept the above-mentioned text messages. The Company shall not be liable for any damages incurred by the customer as there is no fault on the part of the Company.

Case: If the winning text message is wrong, will it be wrong?

Originally, I won the second prize in the "Putian Tongqing Mobile New Life" activity, but the SMS notification was wrong and it was written as the first prize, what should I do?

Questions: 1. Can the customer claim the first prize by virtue of the winning notification SMS, and what reasons does the company have for not redeeming the first prize?

2. How to deal with the situation without notarization?

An error in the SMS notification does not constitute a change to the winning result. Changing the winning result will be unfair to the parties or the company.

In the absence of notarization, as long as we have evidence to prove the electronic data of the original system records and transmitted written materials, we can prove the real winning list. However, due to the risk that this process is difficult to prove, it is necessary to notarize all kinds of **.

Related**Promotional Links:

Shenzhen Mobile explained that the winning SMS notification was sent by mistake - the lawyer said that the error in the notification did not constitute a change to the winning result.

Shenzhen Special Zone Daily" and "Shenzhen Business Daily".

Shenzhen Mobile's erroneous notification does not constitute a change to the winning result, and the above-mentioned winning result has been notarized by the Guangzhou Municipal Notary Office, and the fact of winning the lottery has legal effect. Therefore, a customer cannot claim the first prize solely on the basis of a mistakenly sent SMS.

Chapter II of the Telecommunications Regulations of the People's Republic of China.

Article 35 Where telecommunications operators affect or may affect normal telecommunication services due to engineering construction, network construction, or other reasons, they must promptly inform users within the prescribed time limit and report to the telecommunications regulatory bodies of provinces, autonomous regions, or municipalities directly under the Central Government.

Where telecommunications services are interrupted due to the reasons in the preceding paragraph, telecommunications operators shall correspondingly reduce or exempt users' fees during the period of interruption of telecommunications services.

Where telecommunications operators fail to promptly inform users of the circumstances provided for in the first paragraph of this article, they shall compensate for the losses caused to users.

Q2: Is there a time limit for advance notification of network cutover upgrade?

Decree No. 36 of the Ministry of Information Industry of the People's Republic of China "Telecommunication Service Specification".

Article 8 When providing telecommunications services, telecommunications operators shall publish the types of services, service time limits, tariff standards and scope of services, and report to the local communications administration for the record.

If the telecommunications business operator affects or may affect the use of users due to foreseeable reasons such as line maintenance, equipment relocation, engineering cutover, network and software upgrades, etc., the users involved shall be notified 72 hours in advance. If the time affecting users exceeds 24 hours or affects the use of users with special needs, it shall be reported to the local communications authority at the same time.

When telecommunications operators cease to operate certain businesses, they shall notify the users involved 30 days in advance, and properly do a good job of dealing with the aftermath of the users.

The Telecommunication Service Specification is the Decree No. 36 of the Ministry of Information Industry of the People's Republic of China "Telecommunication Service Specification", which has been deliberated and adopted by the Eighth Ministerial Meeting of the Ministry of Information Industry of the People's Republic of China, and has come into force on April 20, 2005.

Article 19 Where the telecommunications services provided by telecommunications operators fail to meet the service quality indicators set by these Specifications or the local communications administration, the telecommunications regulatory authority shall order corrections. and where corrections are refused, a warning is to be given and a fine of between 10,000 and 30,000 RMB is to be given.

How to deal with the growing legal awareness of clients?

1.You have violated the law.

There is no need to "talk about the law and change color", understand the customer's point of view, and consult professional advice on the briefing, indicating that we will bear the corresponding responsibility if it violates the law.

2.You have to pay ten times the compensation and apologize in writing.

Say no, there is reason to say no, and operators should also protect their legitimate rights and interests.

"If there is a mistake, it will be corrected, if there is a responsibility, it will be reasonable, and there is a code of integrity" - it is not terrible to talk about the law, as long as we learn and master the basic legal knowledge, we can naturally deal with it freely.

Editor-in-charge: Zhou Jiantao

Practice area: private equity ** investment, commercial disputes.

Master of Lancaster University, with a composite background in management and law at home and abroad, has worked in large investment banks and PE investment institutions, specializing in private equity investment, corporate asset restructuring, investment banking business and large-scale commercial dispute cases.

Author: Zhong Yunshi

Master of Financial Crime and Regulation, Macau University of Science and Technology. He has provided perennial legal services for ** departments, enterprises and institutions, and also managed civil and commercial and administrative litigation business, with corporate legal affairs as the leading direction.