A noteworthy judgment of the Municipal Court in Prague has recently been published, which addressed the question of the legality of automatic addition of goods to the basket by an internet trader. Specifically, this concerned a situation where a trader, when selling laptops, “pre-ticked one of the variants of the Microsoft Office product and in one case a computer mouse, whereby after clicking on the purchase field these products were automatically transferred to the basket together with the laptops in question.” The Czech Trade Inspection Authority classified this conduct as an unfair commercial practice within the meaning of Section 4(1) of the Consumer Protection Act, and the trader challenged this decision by administrative action. However, the Municipal Court in Prague upheld the conclusion of the Czech Trade Inspection Authority in the judgment under comment.

Section 4(1) of the Consumer Protection Act contains a so-called general factual clause and provides that “a commercial practice is unfair if it is contrary to the requirements of professional diligence and materially distorts or is likely to materially distort the economic behaviour of the consumer to whom it is addressed or who is exposed to it, in relation to a product or service.” The conduct in question could not therefore be subsumed under one of the misleading or aggressive practices which are generally defined in Sections 5 to 5b of the Consumer Protection Act or more specifically enumerated in Annex No. 1 to the Consumer Protection Act.

The court subjected the trader’s conduct to a three-stage test of unfairness, examining the following questions: 1. Was the trader’s conduct contrary to the requirement of professional diligence? 2. Was the trader’s conduct at least likely to materially distort the economic behaviour of the average consumer? 3. Could the trader’s conduct cause the consumer to make a decision concerning a commercial transaction which he would not have made otherwise? All three questions were answered in the affirmative by the court.

From the reasoning of the court, we extract the following passages which to a certain extent also respond to the trader’s arguments (bearing in mind that this was an administrative action, the trader is referred to by the court as the claimant). “The claimant is certainly entitled to offer the consumer who is considering the purchase of a new laptop the possibility of purchasing a reduced-price Office suite or any other products which, in his view based on previous professional experience with the sale of goods of this type, will facilitate the use of the laptop. However, presuming the consumer’s expression of will directed towards the purchase of such goods, or substituting it in the manner used by the claimant in the case under consideration, i.e. by automatically adding another product in which the consumer himself has not expressed interest to the basket … has nothing in common with the requirements of professional diligence towards the consumer, but is in stark contrast to them.” “It is entirely unacceptable for the claimant to substitute the expression of will of his customers merely because he himself considers it better and more advantageous for the customers.” “Such conduct on the part of the claimant is contrary to the requirements of professional diligence as defined in Section 2(1)(p) of the Consumer Protection Act, as it does not correspond to honest commercial practices, which undoubtedly include the generally observed custom that the purchaser (consumer) himself places in the basket … those goods in which he is interested in purchasing.” “The court fully agrees with the conclusion … that the claimant … improperly tested the consumer’s attention and relied on the consumer being constantly vigilant and checking whether a product on which he had not clicked at all had appeared in his basket. Every consumer when purchasing goods quite legitimately relies on the fact that he has in his basket only those products which he himself has placed in it.”

In conclusion, we note that the trader’s conduct in question is also prohibited by Article 22 of the Consumer Rights Directive, which provides that: “before the consumer is bound by the contract or offer, the trader shall seek the express consent of the consumer to any extra payment in addition to the remuneration agreed upon for the trader’s main contractual obligation. If the trader has not obtained the consumer’s express consent but has inferred it by using default options which the consumer is required to reject in order to avoid the additional payment, the consumer shall be entitled to reimbursement of this payment.” However, this provision has not yet been properly implemented into Czech law, although this should have occurred as early as 2013.

Josef Aujezdský

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal bulletin No. 8/2021 intended for members of this association.

This text was translated from Czech to English using an AI translator.