If such an advert was broadcast once again and a child telephoned this overcharged number several times, heavily increasing his parents’ telephone bill, they can go to court to argue that this expenditure follows upon an unfair commercial practice and that they should thus be exempt from paying it. It is nonetheless very unlikely that somebody would begin legal proceedings in the courts for several dozens or even hundreds of Euros. Aurélie Nottet:  ‘To provide a solution to this problem, the legislator is beginning to consider class actions carried out by consumer associations, who have more means. There also exists an Ethical Advertising Jury, but it is funded by the advertising companies. Its representatives claim that they reprimand its members when an advert is unethical or doesn’t respect the legislation, but they are very flexible in their evaluations, and very lightweight in their disciplinary measures.’  Read the box about rules in programmes for children.     

Belgian law v. European law

It can occur that the Belgian legislator, in wanting to protect minors, runs up against European law. A code of ethics for telecommunication came into force in 2011 following the adoption of a Royal decree. It is there to combat in particular abuses connected to overcharged text messages and telephone calls by imposing strict regulations for minors: a limit on the cost of text messages, an obligation to clearly indicate within an advert that the minor must ask for prior permission from his/her parents to subscribe (which is valuable when sending a text involves you have to pay for receiving other messages), etc. ‘This code of ethics is very detailed, it protects the young, but it is in conflict with the European directive on unfair commercial practices,’ explains Aurélie Nottet. ‘This directive in particular outlaws commercial practices which conflict with professional due diligence and which are likely to affect the economic behaviour of the average consumer or, sometimes, the average minor consumer. Yet this directive aims at complete harmonisation, which means that the member states have to implement it into their national legislation without further extending consumer protection. The European Union’s Court of Justice could thus look unfavourably on this code of ethics.’

But, regardless of this code of ethics, parents whose children have abused the use of overcharged texts retain several possibilities of contesting the facture which has been made out to them. Aurélie Nottet: ‘They can argue that these text service contracts are subsequent to unfair commercial practices (for example the lack of transparency of the costs of sent and received texts), or that the minors suffer a loss by these contracts. In these two cases, the contracts will have their effects annuled in favour of the minors. Before starting legal proceedings, parents can also contact the telephone operator, the telecommunications Mediator or a consumer association.’

In her thesis the author emphasises that significant rafts of consumer law do not take into account the particular vulnerability of minors. We could consider for example what she calls ‘personalised advertising’ (emails, advertising messages sent by name through the mail, texts, classic telephone calls or calls made by automated calling systems). Adults and minors are on an equal footing in this domain. ‘Advertising emails can only in principle be sent once consent to receive them has been provided, for example by ticking a box at the bottom of the screen. But it is always possible to withdraw consent and to ask the company to no longer send these messages, and parents can also take steps to ensure that their children are removed from mailing lists. If the company does not do so, it risks legal penalties.’

Everyone can register on blacklists detailing the names of consumers asking to no longer be contacted by personalised adverts, the Robinson lists ⁽⁴⁾, but they only concern postal snail mail and advertising offers by telephone. On the other hand only the some 450 companies which are members of the Belgian Direct Marketing Association are required to consult these lists. ‘If there existed a centralised and complete system of lists which worked well and was made compulsory not by a private organisation but by law, parents could register their children on it with the certainty that they will not be contacted by personalised advertising,’ notes Aurélie Nottet.

(4) http://www.robinsonlist.be/