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Complaint against Amazon Prime
With this complaint, the Norwegian Consumer Council (Forbrukerrådet)requests that the Norwegian Consumer Authority (Forbrukertilsynet) makes anassessment of whether the procedure for ending a subscription to the service
Amazon Prime is in breach of the Marketing Control Act provisions on unfair
commercial practices. The cancellation procedure for Amazon Prime is designed
in an unclear and obscure manner. It should be as easy for a consumer to get
out of a contract as it was to enter the contract in the first place, which is not
the case with Amazon Prime.

Amazon and Amazon Prime
Amazon.com, Inc. with its main establishment in Seattle, USA, is one of theworld’s largest global online shopping platforms, with localized websites fordifferent countries and a large number of physical warehouses across theworld, with Sweden being the latest country of establishment.

Amazon Prime is a digital subscription service run by Amazon. Subscribers toAmazon Prime receive customer benefits when shopping on Amazon’splatform, for example discounts for Prime members. The Prime subscription
also provides access to other services owned by Amazon, including for example
Prime Reading, Prime Music, Prime Gaming, and Prime Video, without paying aseparate sum for each of these services.

The services included in an Amazon Prime membership varies somewhat
depending on the customer’s country of residence, and on whether a Prime
subscription has been signed up for directly or as a paying customer on theAmazon platform.

ForbrukerrådetPostboks 463 Sentrum, 0105 Oslo, Org.nr 871 033 382
Telefon 23 400 500, post@forbrukerradet.noIn order to sign up for an Amazon Prime membership, the consumer has to signup for a free Amazon account. For consumers that already have an Amazon
account, an Amazon Prime membership may be activated when logged in tothis account.

The Amazon Prime service has more than 150 million members globally.
Although we do not possess concrete numbers on Norwegian consumers who
subscribe to the service, the service Amazon Prime Video, which is included inAmazon Prime, is the second largest video streaming platform in Europe bymarket share, only exceeded by Netflix.

The complaint is lodged against the European main establishment of Amazon
being in Luxembourg. The address is: Amazon EU SARL, Société à responsabilité
limitée, 38 avenue John F. Kennedy, L-1855 Luxembourg.

Briefly on the background for this complaint
The market for subscription-based digital content services is large, and includes
many different types of services. For example, consumers can subscribe tomovies, TV series, music, audiobooks, sports broadcasts, and video games.
Consumers that subscribe to a service receive access to a wide variety of digitalcontent. The monthly payment for each service may be small, but all theservices put together may constitute a significant annual cost for the consumer.

Through previous projects, the Norwegian Consumer Council has shown how
service providers / digital platforms use manipulative design in ways that are atodds with consumer privacy and data protection law. For example, a number ofdigital service providers use manipulative design in an attempt to make theindividual consumer to share personal data with the service provider, in acircumvention of the principles of a legally valid consent. In other cases,
manipulative design is used in attempts to circumvent the legal requirements
for cookie consent forms.

In the report ‘You Can Log Out, But You Can Never Leave’ (attached), we show
how Amazon uses manipulative design in the cancellation procedure forAmazon Prime. The use of manipulative design in this cancellation procedure

ForbrukerrådetPostboks 463 Sentrum, 0105 Oslo, Org.nr 871 033 382
Telefon 23 400 500, post@forbrukerradet.nonudges consumers that attempt to end their Prime membership toward adecision to abandon the procedure and/ or keep their membership. This has anegative financial consequence, and consumers may be led to make a choicethat they would not have made if not for the manipulative design. The
manipulative design includes graphic design patterns, skewed wording, andmanipulative or deceptive click flow.

Briefly on the cancellation procedure for Amazon Prime
The report shows how to end an Amazon Prime membership on an iPhone. The
user interface varies somewhat between devices, which means that there may
be minor differences to the procedure. However, regardless of the device orplatformed used, the process includes manipulative design to a significantdegree. We believe that there is reason to question whether this use ofmanipulative design complies with consumer law.

In order to end a membership/ subscription to Amazon Prime, the consumer
first has to log in to their Amazon account, then open the menu in the cornerand click ‘Your Account’, and then click ‘Prime membership’. Subsequently, theconsumer has to click and scroll through six different pages and make a numberof choices, until receiving a final confirmation that the membership has ended,with the text “Cancellation confirmed”. We refer to the attached report, wherethe process is described in chapter 3.

Unfair commercial practices
The Marketing Control Act provides a framework for what marketing,commercial practices and terms of service the service providers are allowed touse in different markets. The law implements the Unfair Commercial Practices
Directive (UCPD), and therefore the Directive is an important factor wheninterpreting the law. The Marketing Control Act section 6 implements thegeneral clause in Article 5 of the Directive which states that an unfair
commercial practice is banned. What constitutes an unfair commercial practiceis defined in the second paragraph of section 6, which states that a commercial
practice is unfair if it breaches “good business practices” toward consumers,and is able to significantly alter a consumer’s financial conduct, so that theconsumer makes a decision that they would not otherwise have made.

ForbrukerrådetPostboks 463 Sentrum, 0105 Oslo, Org.nr 871 033 382
Telefon 23 400 500, post@forbrukerradet.noA commercial practice shall always be considered unfair if it is misleading
pursuant to section 7 or 8, cf. section 6 third paragraph. The Marketing Control
Act section 8 implements the UCPD Article 7, and is particularly relevant in thiscase. According to the Marketing Control Act section 8, a commercial practice ismisleading if it, in its concrete context and after an overall assessment, leaves
out or obscures significant information that the consumer requires in context inorder to make an informed financial decision.

Pursuant to the first paragraph:“A commercial practice shall be considered misleading if, in its specificcontext and pursuant to an overall evaluation, it omits or hides material
information that consumers require in the context to be able to make an
informed economic decision, or if it presents the information in an unclear,unintelligible, ambiguous or unsuitable manner. In the assessment of
whether information has been omitted, account shall be taken oflimitations of space or time on the medium used to communicate thecommercial practice, and of any measures implemented by the trader tomake the information available to consumers by other means.”

Pursuant to the second paragraph, the practice shall only be regarded as
misleading if it is likely to cause consumers to make an economic decision thatthey would not otherwise have made. This, however, does not require that theconsumer actually takes such a decision, according to preparatory works. In thecancellation process of Amazon Prime, elements such as text, colour andgraphic design is used to confuse and prevent consumers from ending
terminating the service. The consumer is nudged toward keeping theirmembership on each individual page in the process, and if this happens it will
have clear financial consequences for the consumer.

The trader should provide all the information needed to make an informed
decision, and an overall assessment should be made in order to determine
whether an omission or unclear presentation of information is misleading. What
information should be considered ”material“ must be seen in light of what
service one is looking at. In this case, it regards the cancellation procedure of asubscription to a digital service. At the entering of an agreement, the price will
normally be regarded as material. In this case, we are in the opposite end of thelifespan of the agreement. Price is normally regarded as an important term of
the agreement that must be provided before the agreement is entered into,

ForbrukerrådetPostboks 463 Sentrum, 0105 Oslo, Org.nr 871 033 382
Telefon 23 400 500, post@forbrukerradet.noand at the end of the agreement it will be equally necessary to provide clear
and unambiguous information on how the agreement can be ended. Therefore,
one should demand that each individual step or page of the cancellation
process provides clear information and leads the consumer a step closer toending the service.

The cancellation procedure is long, and consists of six separate pages. On eachseparate page, the consumer is nudged toward keeping their Primemembership, even though they have began a procedure to end the agreement.
This nudging toward continuing the membership is done through text about
how “your Prime benefits” will be affected by cancelling, and visually throughyellow warning triangles with an exclamation point inside. This is a powerful
signal, and creates uncertainty for consumers who started the process to cancel
their Prime membership. This uncertainty is further strengthened by having toscroll through the page, which is full of text and graphics to show how
cancelling the membership will mean the loss of many benefits, with the firsteye-catching button containing the text “Use your benefits today”. The next
three buttons are yellow, and contain the text “Keep my benefits”, “Cancel myBenefits”, and Remind me later”. In order to continue the cancellation process,the consumer has to click “Cancel my Benefits”.

Here, unambiguous text to take the consumer to the next step to cancel themembership is left out, and the provided information creates uncertainty about
whether the consumer is actually in the process of cancelling the membership.
As mentioned above, the consumer first has to log in to their Amazon account,then choose ‘Your Account’ in the corner menu. Then the consumer has toscroll down to the headline ‘Account settings’, to find the ‘Prime membership’setting. When clicking the ‘Prime membership’ link, a new page is opened,
where it is not visually or textually unambiguous for the consumer which button
they must click if they want to end their membership, as described above. Laterin the cancellation process, after the consumer has clicked the ‘End
membership’ button, yellow warning triangles with exclamation marks appear
again, repeating that ‘Prime benefits’ will be affected by a cancellation. Clicking
any text to see which benefits will be affected, ends the cancellation process.
Throughout the cancellation procedure, the consumer is faced with the warning
triangle four separate times, and is warned about losing Prime benefits six
separate times.

ForbrukerrådetPostboks 463 Sentrum, 0105 Oslo, Org.nr 871 033 382
Telefon 23 400 500, post@forbrukerradet.no

When assessing whether information has been left out according to theMarketing Control Act section 8, account shall be taken of limitations of spaceor time on the medium used to communicate the commercial practice, and ofany measures implemented by the trader to make the information available toconsumers by other means. In this case, the service provider fully controls how
information is presented, and such considerations are not applicable even if themedium is a mobile phone.

There is a floating transition between being unfair commercial, through beingincorrect, insufficiently guiding, or aggressive, and several provisions may
therefore be applicable to the same practices.

We point out that this is applicable in this case. The Marketing Control Act
section 9 on aggressive commercial practices, implementing Article 8 and 9 in
the UCPD. According to section 9 first paragraph, a commercial practice isaggressive”if it, in its specific context and pursuant to an overall evaluation, byharassment, coercion, including the use of physical force, or undueinfluence, is likely significantly to impair the freedom of choice or conductof consumers with regard to a product. «Undue influence» shall mean
exploiting a position of power in relation to consumers so as to applypressure, even without using or threatening to use physical force, in a way
which significantly reduces the ability of consumers to make an informeddecision.”

The second paragraph of section 9 lists elements that should be taken into
consideration in an assessment of whether a commercial practice is aggressive,
and in this case we find it relevant to point to section 9 second paragraph letterd), which states that in the assessment of whether a commercial practice isaggressive, it must be taken into account”onerous or disproportionate non-contractual barriers imposed by thetrader where consumers wish to exercise rights under the contract,
including rights to terminate a contract or to switch to another product oranother trader,”ForbrukerrådetPostboks 463 Sentrum, 0105 Oslo, Org.nr 871 033 382
Telefon 23 400 500, post@forbrukerradet.noAmazon is the professional part in the contract relationship, and thus sets all
the premises for the formation of the cancellation procedure. In our view, thisprocedure is formed in such a way that it constitutes ‘onerous anddisproportionate obstacles’ to a consumer wanting to end his or hermembership.

Request for consideration of the caseIn the report, ‘You Can Log Out, But You Can Never Leave’, the NorwegianConsumer Council has shown that the cancellation procedure for Amazon Primeis complicated, quite long, and features continuous and extensive uses ofmanipulative design. We ask the Consumer Authority to assess whether thecancellation procedure for Amazon Prime constitutes an unfair commercial
practice pursuant to the Marketing Control Act section 6 cf. Section 8 and 9.

We look forward to the Consumer Authority’s consideration of the matter, andare available for contact if further information is required.

Best regards
ForbrukerrådetFinn Lützow-Holm MyrstadDirector of digital policyForbrukerrådet

Postboks 463 Sentrum, 0105 Oslo, Org.nr 871 033 382
Telefon 23 400 500, post@forbrukerradet.no