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Adjudication

Publication Date
06 August 2009
Case Reference
01565
Procedure
Track 2
Adjudicated Party
Sybase (UK) Limited
Service Type
Tribunal's final assessment
Significant
Sanctions
Code 11 para 8.9.2b - Formal reprimand
Code 11 para 8.9.2d - Fine
Code 11 - refunds
Code 11 para 8.9.2e - Bar
Breaches raised
Code 11 5.2 Legality
Code 11 7.6.2 (a) Competitions and other games
Code 11 7.6.2 (b) Competitions and other games
Code 11 7.6.3 (a) Competitions and other games
Code 11 7.6.5 Competitions and other games
Code 11 7.12.2 Subscription services
Code 11 7.12.4 Subscription services
Code 11 7.12.5 Subscription services
Summary

PhonepayPlus received 70 complaints regarding a service operating on short-codes (80210) and (83900). The TriviCell service was promoted through internet web banners and operated through a website and premium rate text messages. The service asked consumers to answer true or false trivia questions that had been sent to their phones in order to win a prize.  Winners were chosen at the end of a two-month period from the pool of participants who had answered the most correct questions over the period. The service cost £4 per week with an initial joining fee of £5. The service was voluntarily deactivated by the Service Provider on 24 April 2009 following notification by PhonepayPlus.

The majority of complainants were consumers who stated they had received unsolicited premium rate text messages or stated they had been misled into opting into a service which they had not realised was subscription-based. 

PhonepayPlus formed the view that this contravened the PhonepayPlus Code of Practice (11th Edition Amended April 2008) (‘the Code’), and raised the following potential breaches under the Code:

• Paragraph 5.2 - Legality
• Paragraph 7.6.2a – Competition Service (Details of cost of participation)
• Paragraph 7.6.2b – Competition Service (Details of operation)
• Paragraph 7.6.3a - Competition Service (Key terms and conditions)
• Paragraph 7.6.5 - Competition Service (Closing date)
• Paragraph 7.12.2 – Subscription (‘STOP’ Command)
• Paragraph 7.12.4 – Subscription (Initial message)
• Paragraph 7.12.5 - Subscription Reminders

The Tribunal upheld breaches of each of the above paragraphs of the Code except paragraph 7.12.2. The Tribunal decided not to take into account the breach of paragraph 5.2 of the Code when considering sanctions as it found no evidence that the Service Provider had willfully sent any of the unsolicited text messages. The Tribunal considered the case to be significant, issued a Formal Reprimand and imposed a £40,000 fine. The Tribunal imposed a bar on the service and related promotional material for a period of three months or until the Service Provider seeks and implements compliance advice to the satisfaction of the Executive, whichever is the earlier. The Tribunal commented that claims for refunds should continue to be paid by the Service Provider for the full amount spent by complainants, except where there is good cause to believe that such claims are not valid.

Click here to view the Adjudication decision