In 2016, Microsoft implemented the launch of the installation process of Windows 10 on consumers’ computers without their express consent. During the installation process Microsoft replaced some software and applications with it’s own products. Consumers were not provided with sufficient information about the main characteristics of the operating system, and the installation attempts disrupted the functioning of many computers. Furthermore, Microsoft uploaded the GWX (Get Windows 10) application, which was sending direct marketing as repeated messages, to consumers’ computers. The practices taken by Microsoft violated the Consumer Protection Act in many different ways. In January 2018, Microsoft agreed to comply with the requirements set by the Consumer Ombudsman.
In 2016, the Consumer Ombudsman received numerous consumer reports on the way Microsoft’s Windows 10 operating system was offered and introduced. The consumers felt that Windows 10 had been installed on their computers without their consent. Furthermore, during the installation, some computers that had functioned flawlessly before began to crash, and, in some cases, files and software had disappeared.
The installation process of Windows 10 caught the attention of authorities in other countries as well. However, many consumers did not experience problems with the launch process. Since clear problems were detected in the marketing, provision of information and contract terms related to the product, the Consumer Ombudsman considered it necessary to address the issue for the part of Finnish consumers.
Aggressive methods in marketing and customer relations
Microsoft installed on the consumers’ computers the Get Windows 10 (GWX) application, which, according to Microsoft, was aimed at preparing consumers for the upgrade of Windows 10 operating system. The application was installed as part of an update package, which the company had defined as a “recommended update”, meaning that it was automatically uploaded and installed on most consumers’ computers. No separate consent was asked from consumers for the installation and, to prevent the installation, consumers should have changed the default setting to prohibits the installation of “recommended updates” in the operating system’s Windows Update tool.
The GWX application notifications opened on top of all other windows on the screen and interrupted the use of the computer. The messages did not provide information about the characteristics of the application or the Windows 10 operating system, but rushed consumers to start using the new version of the software and pressured them to act soon. To get rid of the messages, consumers had to react to them. The application displayed advertisement-like messages of Windows 10 on the consumers’ computers for several months.
The Consumer Ombudsman pointed out that the GWX application was in fact a direct marketing tool that Microsoft had installed on the consumers’ computers without express prior consent of the consumers. Through the GWX application, Microsoft implemented marketing by methods that consumers considered disturbing and oppressive. The methods used were aggressive practices in marketing and customer relations prohibited by the Consumer Protection Act.
Obligation to provide information was neglected
Unlike earlier Windows operating systems, Windows 10 is cloud-based, continuously and automatically updated, and it functions as a user interface for network-based services.
In its marketing, the trader must disclose to the consumer all material information about the product. The trader cannot expect the consumer to seek information on the product on his or her own initiative behind multiple links or check all terms of contract immediately upon receiving the offer.
The material information of the Windows 10 system should have been provided in connection with the marketing messages of the GWX application.
Consumer consent cannot be disregarded by default settings
The Consumer Ombudsman also paid attention to the fact that the Windows 10 installation process disregarded the consumers’ choice, since options were pre-programmed to constitute “approval”. As a result of default settings set by Microsoft, consumers had to explicitly prohibit the launch of the installation or activation of default settings (opt-out) instead of giving their approval for launching them (opt-in). Pursuant to the Consumer Protection Act, this constituted unfair contract term practice.
For example, Microsoft had defined the settings in such a way that if the consumer closed the GWX application notification by pressing the “x” button on the top corner of the program window, he or she simultaneously and inadvertently accepted the launch of the installation process. Usually this button means “close” or “cancel”, but Microsoft had defined it to mean “ok” or “start”. Due to such default settings, consumers may also have inadvertently accepted Windows 10 Licence Terms. In addition, in connection with the installation of Windows 10, Microsoft removed or replaced some of the applications used by consumers with it’s own products if the consumer failed to search and change the already-activated default settings.
The Consumer Ombudsman investigated the matter with Microsoft in 2016-2017 and had a meeting with Microsoft on 19 January 2018. Microsoft committed in its future operations to no longer target marketing to Finnish consumers using earlier versions of Windows by installing applications on their computers without their express prior consent. The company also agreed not to offer updates to consumers with such opt-out methods where buttons and functions are used against their normal, generally known usage.