Switchfire Ltd (Case reference: 01251)
| Case Number | 01251 |
| Year | 2012 |
| Published date | 15 March 2012 |
| Adjudicated Party | Switchfire Ltd |
| Procedure Type | Emergency Procedure (Phone-Paid Services Authority) |
THE CODE COMPLIANCE PANEL OF PHONEPAYPLUS
TRIBUNAL DECISION
Thursday 1 March 2012
TRIBUNAL SITTING No. 94 / CASE 2
CASE REFERENCE: 01251
Network operator: All Mobile Network Operators
Level 1 Providers: OpenMarket Limited, London and Mobile Interactive Group
Limited, London
Level 2 Provider: Switchfire Limited, London
THIS CASE WAS ORIGINALLY BROUGHT AGAINST THE LEVEL 2 PROVIDER UNDER
PARAGRAPH 4.5 OF THE 12TH CODE
BACKGROUND
Since 1 September 2011, the Executive received 239 complaints in relation to a service
operating on shortcodes 89911, 69001 and 61177. The service was an adult/glamour WAP
pay-per-page/view service that allowed consumers to download such videos to their mobile
handset.
The service appeared to have been promoted via sponsored adverts on search engines
(such as Google) and via text messages containing a link to the WAP pay-per-page website.
Complaints about the service and promotional material fell broadly into three categories;
• complainants who stated they received unsolicited promotional text messages;
• complainants who stated they received unsolicited chargeable text messages; and
• complainants who stated that the promotional material was misleading or that pricing
information was not prominently stated.
(i) The Executive’s understanding of how the service worked
Monitoring performed by the Executive indicated that to access the service a user would
have to either search for adult content via an internet search engine (such as Google) or
click on a link contained in a text message sent to their handset. By searching for adult
content or following a link sent to the mobile handset a user was directed to a landing page
where thumbnails and a list of videos available for download were provided. The service
landing page viewed by the Executive showed pricing information at the top of the page.
Accessing the service via Google
When accessing the service following a search via Google, the pricing was worded:
“Link to free vids see bottom of site. Premium vids/pictures just £3 each plus network
data charges…”
When clicking on the play symbol of a video thumbnail on the landing page, the Executive
was presented with a Payforit screen which required the user to confirm acceptance of a £3
charge to download the video. The wording on this screen stated:
“…Click “Pay Now” to get your hot pic/vid from SF WorkShop for £3…”
After accepting the £3 Payforit charge, the Executive was taken to a new page and
presented with a video download screen with an option to click on a video to download or
click on an option ‘Next Harder Vids’ (the “Content Delivery Page”). The Executive did not
download a video but instead clicked on the option ‘Next Harder Vids’ and was taken to a
new Content Delivery Page that was similar to the first, but provided a different video. This
screen also contained an option for ‘Next Harder Vids’. The Executive chose the ‘Next
Harder Vids’ option a further three times and then closed the web browser. The Executive
did not download any videos at any stage but, shortly after closing the web browser, the
Executive was charged £15, which consisted of a £3 Payforit charge and £12 worth of
reverse billed PSMS charges.
Accessing the service by clicking on a link on the handset
When accessing by clicking on a link on the handset, the wording was:
“Link to free vids see bottom of site. Premium vids/pics just £6 each plus network data
charges”.
In each case the T&Cs were available at the bottom of the landing page by scrolling down.
The Executive clicked on one of the video thumbnails on the landing page and was taken to
a Content Delivery Page which contained a video thumbnail and below that a button stating
‘Next Harder Vid’. Below this button the page stated:
“Pack 2 – premium vids pics just £6 each plus network data charges
HELP:08444457707”.
The Executive clicked on the button marked ‘Next Harder Vids’ and was taken to another
Content Delivery Page with a video thumbnail and a button below it stating ‘Next Harder
Vids’. Beneath this button the page stated:
“Pack 4 – premium vids pics just £6 each plus network data charges
HELP:08444457707”.
The Executive then exited the browser. After closing the browser, the Executive received 16
text messages charged at £1.50 each, thereby incurring a total charge of £24.
The above monitoring of the service via Google and a promotional text message to the
handset showed that the cost of viewing a page was applied to the Executive’s monitoring
phone whether or not it had chosen to view the available videos within each of the Content
Delivery Pages accessed. This therefore meant that a consumer accessing the service
would be charged the same amount for accessing a Content Delivery Page (whether or not
any videos were downloaded) as they would be for viewing the same page and downloading
the video contained within it. Both scenarios would result in charges being reverse-billed to
a consumer’s handset.
THE INVESTIGATION
The initial concerns identified by the Executive were:
• Complainants receiving a high level of charges in a very short period of time;
• The issuing of unsolicited marketing messages;
• Complaints from parents on behalf of their children reporting that their children had
been exposed to adult content;
• The misleading nature of the promotional material; and
• The continuing high number of complaints made by members of the public to
PhonepayPlus.
In accordance with paragraph 4.2.3 of the PhonepayPlus Code of Practice 12th Edition (the
“Code”), the Executive sent a preliminary investigation letter to the Level 2 provider on 23
January 2012, asking a series of questions as well as requesting evidence of opt-in to
receive marketing messages and chargeable messages for several of the complainants’
MSISDNs. The Executive also asked the Level 2 provider to respond to consumer
comments that the T&Cs in the promotional material were misleading. A response from the
Level 2 provider was received on 30 January 2012. On 31 January 2012 the Executive
wrote to the Level 2 provider and requested details of the opt-in to receive chargeable
messages for one of the Executive’s monitoring phones. On 31 January 2012 a response
was received from the Level 2 provider. On 1 February 2012 the Executive wrote to the
Level 2 provider and again requested copies of recent contracts with all parties in the value
chain. On 1 February 2012 the Executive received a response from the Level 2 provider.
On 1 February 2012 the Executive notified the findings of its preliminary investigation to
three members of the Code Compliance Panel (the “CCP”) and sought authorisation to
invoke the Emergency procedure on the Level 2 provider’s Adult WAP pay-per-page/view
service under paragraph 4.5.1(b) of the Code. The CCP considered the seriousness and
urgency of the case and reached an agreement on 2 February 2012 that the Emergency
procedure should be used. This outcome was communicated to the Level 2 provider by the
Executive on 3 February 2012 and the Executive further directed the Level 2 provider to
suspend the service immediately. On 6 February 2012 the Level 2 provider wrote to the
Executive confirming that the Adult WAP pay per page/view services on the relevant
shortcodes had been suspended on 3 February 2012, but requested a review of the use of
the Emergency procedure under paragraph 4.5.3 of the Code.
On 7 February 2012, in accordance with paragraph 4.5.1 (c) (iv) of the Code, PhonepayPlus
published the use of the Emergency procedure on its website.
On 8 February 2012 three CCP members considered the review of the use of the
Emergency procedure. Also on 8 February 2012, the CCP requested further information
from the Level 2 provider. In response to this request, additional information was supplied
by the Level 2 provider to the Executive on 9 February 2012. On 10 February 2012 a
Tribunal considered the additional information supplied by the Level 2 provider and
concluded its determination on the review application. The decision of the Tribunal was to
keep the Emergency procedure in place on shortcodes 69026, 89911, 61177, 69001 and
69113. In relation to shortcodes 89292, 89996 and 89300 the Tribunal concluded from the
evidence available to it that Switchfire was not the level 2 provider and therefore decided to
withdraw the Emergency procedure against these three shortcodes. The decision of the
Tribunal was communicated to the Level 2 provider on 10 February 2012. Further
correspondence ensued between the Level 2 provider and the Executive in relation to this
matter on 14 and 16 February 2012. The investigation then ceased with regards to
shortcodes 69026 and 69113 as these related to facts and matters occurring prior to 1
September 2011 (the date on which the 12th Edition of the Code came into force).
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