Aggressive practices may not be used in marketing or in a customer relationship. Aggressive practices include harassment, coercion and other types of pressure that lead the consumer to take a purchase decision or some other decision they would not otherwise have taken.
Examples of harassment are
- direct marketing addressed to a person who has prohibited the controller from using their data for marketing purposes
- distributing unaddressed direct marketing materials to a person who has prohibited this, for example by displaying a ‘No junk mail’ sticker on their mailbox, or indicated that they do not wish to receive marketing
- telemarketing or door-to-door sales on a public holiday, late in the evening or early in the morning.
Coercion can take the form of not only physical force but also threats against another person’s life, health, freedom, honour, property or similar.
A company applies pressure on a consumer when it uses its dominant position to influence the consumer. In this situation, the company significantly restricts the consumer’s possibilities of making a judicious purchase decision or other decision about a consumer product.
Typical examples of pressure are when a company
- takes advantage of the consumer’s tiredness or illness, or weakness caused by old age, and tires the consumer out until they conclude a contract.
- offers an older person goods that they are no longer able to use and that are unnecessary for them.
Pressure exerted after a contract has been concluded may include
- making it difficult or even impossible to file a complaint
- threatening the consumer groundlessly with legal action when the consumer reports a defect in goods or services.
Assessing aggressive practices
When the Consumer Ombudsman assesses if the vendor’s practice has been aggressive, particular attention is paid to
- its timing, location, nature and persistence
- threatening or abusive language or behaviour
- exploiting the consumer’s specific misfortune or other circumstance that impairs the consumer’s judgement
- imposing barriers to using the consumer’s rights under the contract or the legislation, and threatening to take action that cannot be legally taken.
The Consumer Ombudsman assesses the company’s practice as a whole, taking into account the circumstances of each case.
However, certain practices are unfair and prohibited in all circumstances, and case-by-case consideration is not applied to them.
Examples of prohibited practices are
- creating the impression that the consumer cannot leave the premises until a contract is made
- when visiting a consumer’s home, ignoring the consumer’s request to leave or not to return
- making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media
- including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them
- explicitly informing a consumer that if they do not buy the product or service, the trader’s job or livelihood will be in jeopardy
- creating the false impression that the consumer has already won, or will win on doing a particular act, a prize when in fact there is no prize or other equivalent benefit, or claiming the prize or benefit is subject to the consumer paying money or incurring a cost.
In addition to the Consumer Protection Act, the provisions on invalidity of contracts in the Contracts Act as well as certain provisions of the Criminal Code, including the provision on invasion of domestic premises, may apply to aggressive practices.