4. 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 4T and the Mobile Operators’ financial interests and day-to-day running (impartial unit), to perform ongoing random samplings to ensure that the Premium Rate services comply with the relevant legislation and the Framework Agreement, in such a way that the checks meet the requirements below.
2) To require that those parties, including Content Providers, with which 4T enter into agreements relating to the usage rights for Application Code used in the advertising or offering of Premium Rate services, adhere to the Framework Agreement and the legislation in general.
3) To ensure that those parties with which 4T enter into agreements relating to the usage rights for Application Code require that, in the event of transfer of such usage rights for Application Code, the counter party to such a transfer agreement adheres to the Framework Agreement and the legislation in general.
4) To review that Premium Rate goods or services adhere 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 goods and services offered via applications codes on the Danish market, and to investigate whether the random samplings adhere to the applicable legislation and the Framework Agreement in force from time to time.
The impartial unit shall investigate a representative percentage of the goods and services offered calculated using the number of errors in the most recent six-month period, on the basis of 60 random samplings per quarter.
The random samplings shall be divided so that 1/3 of them are new goods and services and 2/3 existing goods and services. New goods and services are defined as services that have not been investigated before.
The random samplings shall cover the entire offering of Premium Rate services, such that all the various forms of Premium Rate services are checked and the various forms of advertising media and Content Providers are checked.
In other words, the random samplings shall include all types of Premium Rate services, including the Mobile Operators’ own services, and they shall cover Premium Rate services advertised in all forms of media including Internet, TV and printed media, concentrating particularly on high-visibility Premium Rate services. In addition, Premium Rate 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 impartial unit shall carry out retests of Premium Rate services in the light of 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 4T.
As a rule, the impartial unit shall retest all Premium Rate services found to be non-compliant as well as Premium Rate 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 Mobile Operators. The Mobile 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 4T. Such notification shall contain a unique identification of the service and the random sampling, relevant documentation (eg. 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.
The impartial unit shall report to the 4T in writing every ½-year. The ½-yearly 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 Mobile Operators’ obligations relating to the Danish Consumer Ombudsman (Forbrugerombudsmanden) and reporting
On the basis of the impartial unit’s ½-yearly report, the Mobile Operators shall prepare their own report, adding details of the investigations into Premium Rate services that they have carried out themselves. The report shall also contain the steps taken by 4T where breaches were identified. The report shall be sent to the Danish Consumer Ombudsman (Forbrugerombudsmanden).
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
2) Breach of maximum amounts as follows:
a) Breach of any maximum amounts in the Framework Agreement
b) Inadequate price information
c) Premium Rate for received chat messages
d) Premium Rate for service notices
3) Inadequate termination procedure for Subscription-Type Services and Continuous Subscription services which are subject to a separate Premium Rate
4) Inadequate correction or blocking of an identified breach within the period specified, regardless of whether the breach is major or minor.
4.5 Sanctions for major breaches
The Mobile Operators in the Framework Agreement undertake to apply the following sanctions if the Framework Agreement is breached. The day to day work on handling sanctions etc. is carried out by 4T
If a Content Provider has committed a major breach, 4T shall immediately suspend the Content Providers access to Premium Rating of services.
If an Aggregator has transferred the right of use of the Application Code to a Content Provider, which committed the breach, the Aggregator is required to suspend access to the Premium Rate services of the Content Provider in question. 4T must be informed in writing hereof. If the Aggregator fails in this obligation, 4T may suspend access to the Aggregator’s codes.
Access to the service is restored when 4T 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, 4T shall immediately suspend access to the Content Provider’s service. If the Aggregator has transferred the right of use to a Content Provider, which committed the breach, the Aggregator shall suspend access for such Content Provider. 4T must be informed in writing hereof. If the Aggregator fails in this obligation, 4T may suspend access to the Aggregator’s codes.
Following such repeated breaches, access to the service shall not be restored until at least 30 days have passed since the date access was suspended.
Agreements shall be made between 4T and the Aggregator/Content Provider, on one hand, and between the Aggregator and the Content Provider, on the other, in order to ensure that 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, 4T shall require the counter party to the agreement to suspend the entire service offering from the group of companies for 30 days.
Details of the scope and the period of the suspension 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 in principle be regarded as minor breaches:
1) Inadequate information – for example relating to 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.
4.7 Penalties
4.7.1 Penalties based on service
For each breach of the Framework Agreement identified in a random sampling, a penalty shall be imposed upon the relevant Content Provider of:
- DKK 3,000 for minor breaches and
- DKK 6,000 for major breaches
All amounts are exclusive of VAT.