Last week, the California Court of Appeals for the 2nd Appellate District overturned the ruling of a lower court and reinstated the lawsuit of a customer who alleged that Skype’s unlimited plan was deceptive. The plaintiff Melissa Chapman had alleged that calling the plan “unlimited” while providing a small-print link at the bottom of the webpage that led to a separate webpage disclosing the limits on the plan was deceptive and against California’s laws against deceptive advertising.
Chapman alleges that even while the small link at the bottom of the page led to disclosure of limits on the “unlimited” plan, the text of the link did not indicate limitations or restrictions, but just mentioned “a fair use policy applies.”
And then the link led to a separate web page that detailed the unlimited plan as limited to 50 calls a day, six hours a day, and 10,000 minutes a month and with additional calls charged at regular rates. The page also disclosed that the plan, though termed “unlimited” did not include calls to mobile phones in four out of five countries covered by the plan.
Chapman had alleged that she failed to notice the “fair use” footnote when she bought the plan on the presumption that it was unlimited, and was surprised when she found additional charges on her bills.
Her initial lawsuit, which also sought class action, was dismissed by a Superior Court judge who found that Skype had sufficiently disclosed its policy and Chapman’s acceptance of the terms and conditions was implicit.
The appeals court, however, found things to be different and ruled that such conclusions involved factual disputes and the case should go before a jury.
Now it would be the turn of the jurors to decide whether a footnote indicating “fair use” is sufficient to properly disclose that limitations and restrictions on an unlimited plan are hidden in another webpage.
Chapman’s lawyer, James Kawahito said “You can’t say something in a headline and then, through a footnote, say, ‘Just Kidding.’”
Microsoft issued a statement welcoming the ruling and said, “We look forward to rearguing this case in the trial court and are confident that (the judge) will again find in our favor.”
While Microsoft seems to have full confidence in this particular judge, the jurors may not be so easy to convince.