| Summary |
This case was brought against the Level 2 provider under Paragraph 4.5 of the 14th Edition of the Code of Practice (“the Code”).
The case concerned a subscription alert service operating under the brand name ‘Fruity Cell’ which was billing on the shortcode 65099 (“the Service”).
The Level 2 provider for the Service was New Level Ventures Limited based in Cyprus (“the Level 2 provider”). The Level 1 provider was Dynamic Mobile Billing (“the Level 1 provider”). Kalastia Consulting Limited (“the Supplier”) was identified by the Executive as a Supplier which operated within the value chain.
The Level 2 provider registered the Service with the Executive on 8 September 2017.
On 18 March 2019, the Level 2 provider supplied a summary of the way in which the Service was intended to operate to the Executive. It stated that: “Fruitycell is a smoothie recipe site. We present original fresh and delicious smoothie recipes and tips as part of a club. The cost costs £4.50 per smoothie recipe alert. There is a maximum of 2 alerts per month. We have only been sending 1 alert per month, and all the other recipes and tips are contained in the portal.”
Following complaints received by members of the public, the Executive sought derogation, as it was required to do so at that time in accordance with the application of the e-Commerce Directive 2000/31/EC. As the Level 2 provider was based in Cyprus, the Executive was required to refer its concerns to the Member State first before opening a formal investigation, and this was done on 18 April 2019. Derogation was obtained on 23 May 2019 and the Executive decided to conduct an investigation under its Track 2 procedure on 3 July 2019.
The Level 2 provider had not previously been the subject of Track 1 or Track 2 procedure.
The Level 2 provider confirmed on 8 October 2019 that the Service was no longer operating and billing. It also stated that it would continue to offer customer care solutions and that it intended to cooperate with the Executive.
On 13 December 2019, interim measures were sought by the Executive. The Code Adjudication Panel authorised a withhold of service revenue up to £510,000.00.
Sanctions imposed:
- a formal reprimand
- a prohibition on the Level 2 provider from providing, or having any involvement in, any premium rate service for a period of five years, starting from the date of publication of the Tribunal decision, or until payment of the fine and the administrative charge, whichever is the later
- a requirement that the Level 2 provider must refund all consumers who claim a refund, for the full amount spent by them on the Service, within 28 days of their claim, save where there is good cause to believe that such claims are not valid, and provide evidence to PSA that such refunds have been made
- a fine of £250,000.
Administrative charge recommendation: 100% |
