MissFresh app tweeting promotional messages case
Wang received the promotional short messages after registering on MissFresh, a fresh food shopping app. In an attempt to cancel such short message service, she paid 0.1 yuan ($ 0.016) as a cancellation fee according to the app's instructions.
Alleging that MissFresh infringed her legitimate interests and rights by sending her promotional messages based on standard contract stipulations, Wang sued MissFresh in the Beijing Internet Court (BIC), requesting to confirm the invalidation of stipulations in the user agreement and privacy policies and to add options and valid methods for users to decline the promotional messaging service, and compensation for the cancellation fee.
The BIC released its judgment of the first instance and concluded that the standard contract between plaintiff Wang and defendant MissFresh was valid and that tweeting promotional messages did not violate it. But the defendant should bear the 0.1 yuan cancellation fee as well as 25 yuan in legal costs. The defendant proactively fulfilled its obligations as said in the judgment during the appeal period. The judgment has now come into force.
After Wang registered for the MissFresh app, she received its promotional messages on Nov 1, 11 and 15, 2019. She replied with the letter "N" to cancel the service three times on Nov 10 and 15, 2019. One of the cancellation messages generated 0.1 yuan as an SMS fee. MissFresh stopped tweeting promotional messages upon receiving her cancellation messages.
Plaintiff Wang: The contract format in question should be invalidated, and the multiple tweeting of promotional messages was a breach of contract.
Wang claimed that the user agreement and privacy policies between her and MissFresh both had typical contract provisions allowing tweeting of promotional messages that excluded the major consumer right, and thus should be confirmed to be void. Moreover, she requested that MissFresh should amend its related stipulations in the user agreement and privacy policies to allow consumers to feasibly cancel the promotional messaging service. Besides, the fact that MissFresh kept sending more promotional messages after Wang sent her first message of cancellation constituted a contract violation. Lastly, the 0.1-yuan cancellation fee should be borne by MissFresh.
Defendant MissFresh: The contract provisions in dispute were valid and tweeting promotional messages should not create liability.
When registering for the app, Wang agreed to the user agreement and privacy policies. Accessing her account information and tweeting promotional messages to her were thus valid procedures. MissFresh blocked Wang’s mobile number in accordance with related stipulations in the user agreement and privacy policies, and thus was not at fault when Wang’s cancellation message failed to reach them which led to the continued message tweeting to Wang.
Upon trial, the BIC concluded that:
1. The involved stipulations in the user agreement and the privacy policies were valid.
The two relevant clauses clearly informed on content closely related to tweeting transactions and delivery-related messages. They also stipulated ways to cancel the service. The stipulations did not exempt MissFresh from its responsibilities, nor exclude users’ main rights. They also fulfilled the duty to inform by highlighting related content. Therefore, the two clauses were not invalid according to contract law.
2. MissFresh did provide valid ways to decline the promotional messaging service.
First, the privacy policies offered three ways to cancel the messaging service. Second, when Wang sent her first cancellation message, MissFresh failed to receive it, as assertion supported by the fact that Wang's telecom operator did not charge her for that message. Wang's second cancellation message was sent successfully and MissFresh stopped tweeting her promotional messages upon receiving it. It could thus be concluded that MissFresh's message cancellation methods were valid.
3. MissFresh's tweeting behavior did not constitute breach of contract.
The BIC determined that the standard terms in the privacy policies were still based on the agreement between the parties. Unless in violation of established mandatory legal provisions the standard terms will have binding force on both parties. MissFresh did highlight the related terms and provided three ways to decline the messaging service. The terms in dispute were therefore valid, and MISS FRESH's tweeting behavior was backed up by the contract and did not breach it.
4. The cancellation fee should be borne by MissFresh.
In this case, neither the user agreement nor the privacy policies had stipulations on who should bear the cost of promotional SMS cancellation. According to the Civil Code, if the bearer of performance expenses is unclear, the expenses shall be borne by the party performing the obligations. In this case, MissFresh was the party performing the obligations, and should therefore bear the cancellation fee.
Details of the judgment:
1. The defendant MissFresh was ordered to compensate the plaintiff Wang 0.1 yuan for the SMS cancellation fee within 10 days of the judgment.
2. Other claims of the plaintiff were rejected.
3. The 25-yuan litigation fee will be borne by the defendant.
Tips from the judge:
1. Review of standard terms in the one-to-mass platform economy needs extra caution.
MissFresh's tweeting behavior was based on the terms in its user agreement and privacy policies. Those terms were pre-formulated based on the "one-to-mass" platform model of online shopping. They apply consistently to its members which is economical and convenient.
2. Authorization of platform services needs to balance user experience and transaction convenience.
In order to meet the diversified needs of internet users, internet platforms should include personalized and differentiated services into a packaged authorization agreement where options to select or cancel the services are provided.
3. As there was a lack of such provisions in the agreement in question, the promotional SMS cancellation fee should be borne by the internet platform which was the cancellation service provider. The same principle will apply to any internet platform and its users.