France, justice investigates Apple for planned obsolescence
The first, sanctioned for 10 million euros, is “the insistent proposal, to consumers in possession of iPhone 6 / 6plus / 6s / 6splus, to proceed to install the iOS10 operating system and subsequent updates (including iOS 10.2.1). whose characteristics and impact on the performance of the smartphones themselves have been described in an omissive and deceptive manner, without offering (if not to a limited or late extent) any means of restoring the original functionality of the devices in the event of an experienced decrease in performance following the update, “reads today’s ruling.
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In particular, as summarized by the Tar from the Antitrust decisions, according to information acquired for the purposes of applying the Consumer Code and the reports of some consumers received in December 2017, Apple, on the occasion of the release of the iOS 10.1 system, did not informed customers of the possible operating problems that the new OS could have caused while waiting for the hardware configuration of the smartphones in which it would have been installed (and in particular the degree of wear of the battery) under certain conditions of common use.
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“Furthermore, on the occasion of the release of the iOS 10.2.1 system, Apple failed to inform consumers in advance, in a clear and immediate manner, that to avoid some significant inconveniences (such as the sudden shutdown / restart of their iPhone) this release included a smartphone performance management system that would have appropriately slowed those performances to avoid unexpected shutdown – a system also maintained in subsequent iOS updates “.
Off to the campaign to stem the planned obsolescence of the products
The second practice, sanctioned for 5 million euros is “the lack of information on the battery characteristics and specifically on the conditions to maintain an adequate level of iPhone performance, its duration and the methods for its correct management in order to slow down the natural wear and tear and therefore the replacement of the same battery “.
According to Apple, in the reasons for the appeal to the TAR, it is a matter of excess of power by the Antitrust Authority, formal defects and misrepresentation of the rules on consumption.
The Antitrust Authority contested Apple with five profiles of omitted disclosure but only in one case did Apple believe it had not fulfilled: it is the omitted disclosure relating to the “need to check the battery status cautiously when new software updates are released, at in order to allow correct use and maintain an adequate level of performance of their mobile devices “.
The Tar reports some factual elements in support of the decision. That installing a new version of iOS can in some cases create reductions in iPhone performance, as later clarified by Apple itself. Apple also releases, in the period between one version and the next of iOS, many other software updates: the iOS 10 version has had 12 updates.
Each new update is proposed to all iPhone owners on the basis of a check between only two possible states of the device, “updated” or “not updated”.
Once an update is available, Apple repeatedly sends the message to consumers to ask them to download and install the update that has been released, periodically stressing the consumer until the update is downloaded: this solicitation cannot be avoided. The messages end with a virtual button called “Download and install”, “the only option offered to the owner of the mobile phone, activating which the smartphone proceeds to download and install the new version of the operating system”, reads.
From the examination of the data, the Antitrust Authority had found that, with the described messages, Apple reports only what the expected improvements are, in ways that strongly suggest the opportunity to update and therefore invites to perform it but does not inform the consumer on the possible risks that these updates may determine in terms of lower functionality of the appliances, in relation to both their hardware characteristics and their specific state of use, and therefore on the caution with which the consumer must evaluate whether or not to proceed with the updating of the operating system; that the messages that end with the virtual button called “Download and install” do not clarify that this process is irreversible; that the messages are persistent, non-refusable and not otherwise eliminated if not by downloading the update; that once made an update, Apple does not allow the return to a previous version of the iOS operating system (so-called downgrading).
The Tar agrees with the Antitrust Authority that “Apple has built a sophisticated technological and marketing system which, through omissive information and aggressive practices long described in the provision, strongly affects the consumer in their choices”.
In three ways. With “a sort of forced user loyalty”, “the periodic, frequent and insistent proposition of software updates that, in fact, once downloaded, slow down and reduce the functionality of the older iPhone models, without the owner being informed or fully aware: this circumstance which, more often than not, induces the consumer to get rid of the old model to buy a latest generation iPhone “.
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Finally, third way, “with the replacement of the components, including the battery (component that, already subject to normal wear, undergoes a sudden acceleration in degradation due to the heavy updates, in fact imposed by Apple), which the owner cannot carry out independently with a simple operation, as is the case with smartphones of other brands, but which can only be carried out at an Apple authorized center.
The Tar also notes that “from the elements acquired in the investigation it was found that only starting from the last days of December 2017 Apple has provided its customers with adequate information: about the central relevance of the battery for iPhone performance; about the characteristics of the batteries in terms of life cycle and their ability to provide energy quickly; about the need to check the battery status cautiously when new software updates are released; about when it may be necessary to replace the battery .
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As he says Marco Scialdone, among the leading lawyers in the field of technology law, “this is a very important sentence: for the first time, the existence of planned obsolescence is recognized as an aggressive commercial practice to the detriment of consumers”. “Planned obsolescence is a hateful practice, because it is hidden, against which the consumer cannot defend himself. Well, therefore, that the Tar confirmed the sanction imposed by the Antitrust on the Colossus of Cupertino. It will be necessary to see if the space will be opened for a claim for damages from damaged consumers. Normally, the conditions for a class action exist “.