On 20 December 2012, the Tribunal considered a case brought against Frontier Ltd – the operator of a service known as ‘Porn Locker’ – by PhonepayPlus, which regulates premium rate phone services in the UK.
Porn Locker provides access to adult video material.
Between 13 September 2011 and 6 November 2012, 60 complaints were made to PhonePayPlus by members of the public about the Porn Locker service, with most alleging that they had received unsolicited marketing texts.
The Executive of PhonepayPlus wrote to Frontier on 13 November 2012, alleging potential breaches of its Code of Practice in the following areas:
• Rule 2.3.3 – Consent to charge
• Rule 2.4.2 – Consent to market
Frontier responded to the breach letter on 4 December 2012.
Rule 2.3.3 reads, “Consumers must not be charged for premium rate services without their consent. Level 2 providers must be able to provide evidence which establishes that consent.”
Rule 2.4.2 reads, “Consumers must not be contacted without their consent and whenever a consumer is contacted the consumer must be provided with an opportunity to withdraw consent. If consent is withdrawn the consumer must not be contacted thereafter. Where contact with consumers is made as a result of information collected from a premium rate service, the Level 2 provider of that service must be able to provide evidence which establishes that consent.”
Regarding rule 2.3.3, the Executive alleged that Frontier had sent reverse billed marketing texts, charged at £3 each, to an unspecified number of people, and noted that it had not seen any evidence from Frontier that demonstrated that the recipients had consented to receiving these texts and paying the associated charge.
Frontier argued that it had not sent any unsolicited texts, and included in their argument that the fact that recipients had clicked on the WAP link in the texts constituted ‘active consent’. It also argued that it suspected the recipients had complained because of their dissatisfaction with the content provided, rather than with the fact they had received the text.
Regarding rule 2.4.2, the Executive said there was insufficient evidence to demonstrate that the recipients had purchased similar services from Frontier previously, or that Frontier had given these clients the chance to opt out of receiving marketing texts.
Frontier said that all recipients of these texts were existing customers. It claimed to have provided evidence of when these customers opted in to receiving marketing communications, and pointed out the ways in which the customers were informed how they could stop receiving such material.
The Tribunal’s rulings:
On the first point regarding consent to charge, the Tribunal concluded that there was not ‘robust evidence’ of the recipients giving their consent to pay a charge for Frontier’s services.
On the second point regarding consent to market, the Tribunal concluded that Frontier had failed to provide sufficient evidence to demonstrate consent. The volume of complainants alleging they had received unsolicited messages meant it was likely that at least some had not given their consent.
The Tribunal issued a formal reprimand to Frontier, imposed a fine of £30,000 and ordered them to pay refunds to all affected customers who requested compensation.