AOL’s unlimited, fixed price web access deal was a massive hit with French surfers. And the ads were crucial in ensuing litigation when AOL introduced an automatic log-off.
Topic: Misleading advertising
Who: AOL
Where: France
When: February and March 2001
What happened:
In 2000 ISP AOL offered French web surfers a new, unlimited access package for 24 months at a fixed monthly charge. A victim of the offer’s success, AOL later introduced technical measures to restrict the period of time users spent on-line. After a certain period of time on-line for example, there was an automatic log-off.
Disappointed subscribers took action in the French courts, and so far AOL’s record in defending these claims has not been good.
In Nanterre, the court determined that "unlimited" did not mean only, as AOL argued, that subscribers could log on as many times as they wanted. It also meant "no limit" to the time that could be spent on-line after logging on. Accordingly the advertisement was misleading, or rather became so once the automatic log-off was introduced.
In Toulouse, the court held that AOL was in breach of contract. Following the EU Directive on unfair terms in consumer contracts, the court refused to allow AOL to hide behind the phrase in their terms and conditions: "AOL reserves the right to modify or stop, at any time, some features of its offering including contents and services." This could not be used, the judge said, to permit AOL to fail to provide what was essentially the agreed service. Applying the same Directive the judge in yet another AOL case, this time in Puteaux, disapplied another clause in AOL’s terms and conditions. This excluded any AOL warranty that the user will be able to establish an internet connection where and when chosen. This could not be relied on, said the court, where on the other side the consumer was locked into using the service for 24 months. Otherwise there would be a significant imbalance in the parties’ rights and obligations.
Why this matters:
There are other cases against AOL in the pipeline, and the sorry saga takes on, though in a quite different marketing context, shades of the dreaded "H" word here in the UK. The cases underline two particular features which are as relevant to UK advertisers as they are to those in France. First, a clear representation made in advertising may well end up forming part of the contract under which the product advertised is supplied. Second, the Unfair Terms in Consumer Contracts Regulations here in the UK did not initially loom large on B2C companies’ radar screens. AOL’s experiences here, however, are a reminder that no amount of carefully crafted exclusions in the small print will help where the product as advertised is or becomes fundamentally different in reality.
