Supervision and sanctions
The Parties to this Framework Agreement undertake the following:
1) to have an agreement with a separate unit, which is independent of the Operator’s financial interests and day-to-day running, to perform ongoing random samplings to ensure that the premium services provided over the Operator’s network comply with the relevant legislation and the Framework Agreement, in such a way that the checks meet the requirements below,
2) to ensure that the Framework Agreement and the legislation in general is adhered to by the Parties, including content providers, with which the Operator enters into agreements relating to the usage rights for application code used in the advertising or offering of premium services,
3) to ensure that the Parties with which the Operator enters into agreements relating to the usage rights for application code require that such agreements, in the event of transfer of such usage rights for application code, stipulate that the Party in question must adhere to the Framework Agreement and the legislation in general,
4) to review its own operations to ensure that a premium service adheres to the Framework Agreement and the legislation in general, on its own initiative where there is a particular reason for doing so or following an approach by end users or others.
4.1. Purpose of supervision
The purpose of appointing an impartial unit is to carry out a specified number of random samplings of all mobile content services offered on the Danish market, and to investigate whether the random samplings adhere to the applicable legislation and the Framework Agreement for mobile content and payment services in force from time to time.
The impartial unit shall investigate a representative percentage of the services offered calculated based on the number of errors in the most recent six-month period, on the basis of 125 random samplings per quarter.
The random samplings shall be distributed as follows: 1/3 new services and 2/3 existing services. New services are defined as services that have not been investigated before.
The random samplings shall cover the entire offering of mobile content services, such that all the various forms of mobile content services are checked and the various forms of advertising media and providers are checked.
In other words, the random samplings shall include all types of premium services, including the Operator’s own services, and they shall cover services advertised in all forms of media including Internet, TV and print, concentrating particularly on high-visibility services. In addition, services shall be checked if there is a particular reason to doubt the actual content of the service.
Certain random samplings are carried out outside normal office hours, including random samplings of competitions, etc. linked to TV broadcasts.
The majority of the random samplings shall be carried out with regard to the following points in the Framework Agreement:
The impartial unit shall carry out retests of services depending on any identified breaches of the Framework Agreement and the applicable legislation. As a rule, retests shall take place about one week after the breach is notified to the Operators.
As a rule, the impartial unit shall retest all services found to be non-compliant as well as services of the same type provided by the same content provider on the same platform and advertised in the same medium.
4.2 Documentation and reporting
The impartial unit shall ensure that the random samplings and documentation are uniform and consistent, and, for each random sampling, shall provide a substantiated assessment of the degree of compliance of the service with the relevant legislation and the Framework Agreement.
The impartial unit may obtain all relevant charging data and similar significant information at short notice from the agreed points of contact of all the Operators. The Operators shall provide such information without undue delay.
If the impartial unit identifies any breaches of the legislation or material provisions of the Framework Agreement, it shall immediately notify the Operators. Such notification shall contain a unique identification of the service and the random sampling, relevant documentation (e.g. advertising material and charging data) and a substantiated assessment of the service’s breach of the legislation and the Framework Agreement. The notification shall be sent by e-mail or fax.
The impartial unit shall report to the Operators in writing every quarter. The quarterly report shall contain an overview of all random samplings carried out, details of compliance with the legislation and the Framework Agreement, and, if applicable, those areas in which the regulations have been breached.
4.3 The Operators’ obligations relating to the Danish Consumer Ombudsman (Forbrugerombudsmanden) and reporting
On the basis of the impartial unit’s quarterly report, the Operators shall prepare their own quarterly report, adding details of the investigations into premium services that they have carried out themselves. The report shall also contain the steps taken by the Operator where breaches were identified. The report shall be sent to the Danish Consumer Ombudsman (Forbrugerombudsmanden), who may release the details to the public.
4.4 Major breaches of the Framework Agreement
The following three types of breach shall always be regarded as major breaches:
1) Services with adult content, as described in this Agreement with the exception of erotic content, if offered through the 16 series in accordance with the relevant rules.
2) Breach of maximum amounts as follows
a) Breach of any maximum amounts in the Framework Agreement (DKK 12/75/150/200/225)
b) Inadequate price information
c) Premium rated charging of received chat messages
d) Premium rated charging of service notices
e) Inadequate termination procedure for subscription services subject to separate premium charging
3) Inadequate correction or blocking of an identified breach within the period specified by the Operator, regardless of whether the breach is major or minor.
4.5 Sanctions for major breaches
The Operators in the Framework Agreement shall apply the following sanctions if the Framework Agreement is breached.
If the content provider has committed a major breach, the Operator shall immediately suspend access to its mobile network for the services of the content provider.
If the content provider has transferred the right of use of the application code to a third party, who committed the breach, the content provider is required to suspend access for the services of the party in question. The Operator shall be informed in writing. If the content provider fails in this obligation, the Operator may suspend access for the content provider’s codes.
Access to the service is restored when the Operator has been shown evidence that the relevant breach has ended.
If the same content provider commits a breach of the same kind, i.e. the same type of breach, within 12 months, the Operator shall immediately suspend access to the content provider’s service. If the content provider has transferred the right of use to a third party, who committed the breach, the content provider shall suspend access for such third party. The Operator shall be informed in writing. If the content provider fails in this obligation, the Operator may suspend access for the content provider’s codes.
Following such repeated breaches, access to the service shall not be restored until at least 30 days have passed since the date of suspension.
The Operator and the content provider shall ensure by means of their agreement that the services that are advertised in breach of the Framework Agreement are suspended. Sanctions shall be applied to those who advertise the service and declare names and addresses in accordance with the Danish Consumer Contracts Act (forbrugeraftaleloven).
If two business units within the same group of companies each separately advertise a service in the unit’s own name and each separately commit two serious breaches, and the type of breach is the same in both units, the Operator shall require its contracting party to suspend the entire service offering from the group of companies for 30 days.
Details of the scope and the period of the suspension shall in all cases be passed to the other Operators and may be published on www.rammeaftalen.dk.
4.6 Minor breaches
Minor breaches are clear and simple breaches of applicable rules.
The following types of breach shall always be regarded as minor breaches:
1) Inadequate information – for example the name, address and telephone number of the content provider
2) Inadequate information on a durable medium
3) Inadequate information about the right of withdrawal
Inadequate correction of a minor breach shall be regarded as a major breach.
For each breach of the Framework Agreement identified in a random sampling, a penalty shall be imposed upon the relevant content provider by the Party to the Framework Agreement in whose telephones the random sampling took place.
- DKK 500 for lack of information about “+ usage charge”
- DKK 3,000 for minor breaches
- DKK 6,000 for major breaches
All prices are excluding VAT.
The penalty shall be collected by the Party to the Framework Agreement in whose telephones the random sampling took place.
4.7.2 Penalties based on contracting party
An error rate is calculated on the basis of the total number of breaches by the contracting parties of each Operator, indicating the number of services with errors in relation to the number of services tested by the impartial unit. The error rate is fixed for the following six months at a time. At present, the maximum error rate is 50 per cent of the total number of services tested per contracting party.
The parties submit monthly statements to each contracting party. The statements show the random samplings regarding the contracting party in question conducted by the independent entity
If the error rate is exceeded for a three-month period, the contracting party shall be liable for a penalty of DKK 3,000 for each of the contracting party’s services that are tested in that period. If the minimum 10 services have not been tested in the relevant quarter, the process shall wait until at least 10 services have been tested, after which the error rate is calculated for the period as a whole.
Penalties applied under this point shall be used to promote the content and payment market in Denmark, for example for educational activities. The Parties to the Framework Agreement shall decide in detail how the funds are to be used.
Collections as described in 4.7.2. shall be carried out and paid into an account for the stated purpose.
The parties behind the Framework Agreement has bilaterally committed themselves to the Consumer Ombudsman, “to give the customer an easy and cost-free access to receive information about in which of the 13 listed below service categories, the invoiced services belong.” Therefore the parties have introduced fines for incomplete service categorisation so that the category “Diverse” is not specified by service category for the majority of digital services.
|Period||Percentage share of correct categorization per contract party||Fine|
|1.Sept. 2011- 31. Oct. 2011||Minimum 50%||DKK 1000|
|1.Nov. 2011 – 31.Dec. 2011||25%||DKK 2000|
|1.Jan. 2012 – 29.Febr. 2012||Minimum 10%||DKK 3000|