Are three months one year? Intervention by the President of the Office of Competition and Consumer Protection in the case of free software

The publisher of PC Format may have misled consumers as to the rules regarding the use of anti-virus software distributed with its magazine. The President of the Office of Competition and Consumer Protection (UOKiK) reached this conclusion in decision no. RWA-3/2015 of June 19, 2015. The proceedings against Wydawnictwo Bauer – the publisher of PC Format – were commenced in March 2015. The objections of the President of UOKiK concerned the December issue of the magazine and the anti-virus software Bitdefender Total Security 2015 with a license for an alleged period of one year that was distributed along with it. This was also the message included in the advertisements regarding the December issue; for example, the publisher placed the following slogan on the cover of the magazine: “The best anti-virus. Full version for a whole year.” Only after reading the detailed information inside the magazine did, it turns out that the person who bought the magazine obtained merely a three-month license for using the anti-virus software and in order to extend the said license the user had to insert activation codes that were to be provided in the following issues of PC Format magazine.

This matter made it justified for the President of UOKiK to commence proceedings regarding the allegation that Wydawnictwo Bauer used practices infringing upon the collective interests of consumers.

According to Article 24 clause 1 of the Competition and Consumer Protection Act, practices infringing the collective interests of consumers are prohibited. Such practices include among others unfair market practices or acts of unfair competition. Unfair market practices, in turn, are prohibited pursuant to Article 3 of Act on Prevention of Unfair Market Practices. In the following Articles of the Act, the legislature provided other examples of unfair market practices, and indicated for instance in Article 5 clause 1 of the Act that a misleading act that in any way whatsoever causes or may cause the average consumer to make a decision regarding an agreement that such consumer would not otherwise have made shall be considered an unfair market practice. A misleading act includes, in particular, dissemination of incorrect information or dissemination of correct information in such a manner that could be misleading.

The President of UOKiK in the said decision determined that directing at readers promotional content that clearly indicates the consumer should expect a one-year license for the anti-virus software by Wydawnictwo Bauer may be misleading towards consumers as to the actual period (3 months with an extension option – note of MP) for which they obtain the license to the aforementioned software. As was indicated by the President of UOKiK in the justification: “an average consumer, when reading such expressions, could come to the conclusion that after buying the magazine, he/she would obtain the anti-virus software along with a one-year license for its use (…) In the opinion of the President of the Office, the use of the aforementioned expressions, both on the cover and in the promotional materials of the magazine, was intended to make the Company’s offer seem special, to make it more attractive and thus encourage significantly more customers to buy the magazine.” The justification argues therefore that the slogans suggesting a one-year license could influence and distort the decision-making process of the average consumer, i.e. encourage him/her to buy the magazine. It could be rationally assumed that “the best anti-virus” with a one-year license made the magazine seem much more attractive in the eyes of consumers.

In the course of the proceedings, Wydawnictwo Bauer committed itself to eliminate the lasting effects of this infringement by extending the term of the license to the aforementioned anti-virus software to the end of 2015 and to provide relevant information about such extension in the following issue of the PC Format magazine. As a result, on the basis of Article 28 of the Competition and Consumer Protection Act, the President of UOKiK was entitled to issue a decision that by means of a quasi-amicable settlement was intended to bring the activities of Wydawnictwo Bauer into conformity with law. Such behavior of the publisher allowed it to avoid, on one hand, financial penalty imposed by the President of UOKiK for possible practices infringing collective interest of consumers, and on the other – long-lasting proceedings in this matter.

The case in question shows that entrepreneurs that present their products based on business communication should pay attention so that such information is clear, credible and true for the average consumer. However, it might be problematic to define the model of average consumer as a recipient of such information. In the course of evolution of EU case law, it was accepted that an average consumer is a well-informed and careful person (e.g. the Mars case, C-470/93). Despite this, information activities consisting in providing incorrect information about the product characteristics (in this case – clear and precise information about the term of the license provided on the cover of the magazine) should be regarded as untrue and unfair.

A positive aspect to this case is also the fact that Wydawnictwo Bauer on its own volition committed itself to eliminate the lasting effects of this infringement by automatically extending the validity of the license to the aforementioned anti-virus software. This “self-controlling” approach of the entrepreneur allowed the swift conclusion of the case, and ultimately it was the consumers – purchasers of the magazine – that benefited from this the most.