Acceptable Use Policies

Many ISPs have in place Acceptable Use Policies (AUPs) that govern the conduct of customers. These may relate to security, illegal activities, conduct in newsgroups, user website content, etc. An AUP is also a means of imposing limits on Internet usage in order to restrict 'excessive use' by some members that can cause congestion and thereby reduce the quality of service to other users.

While the TIO supports the right, indeed the necessity, of providers to regulate usage, it has serious reservations about the way in which some of these AUPs are introduced, either without notice, with inadequate notice, or in circumstances where they amount not to a variation of contract, but to a wholly new contract. Moreover, the TIO considers that use of the word 'unlimited' when a service is subject to an AUP is potentially misleading.

As regards the notification of AUPs, the TIO expects providers to:

• ensure that AUPs are clearly specified on or near pricing information;
• specify what action will be taken if an AUP is breached;
• ensure that AUPs are presented in a prominent position in advertising material and that the true nature of an internet plan is described;
• ensure compliance with ACIF's Prices, Terms and Conditions Code, in particular clause 6.6 which states:

  "A supplier must not use a disclaimer to negate the principle messages of the
  advertising materials."

Where a complainant and provider disagree over whether an AUP was breached, the TIO can investigate to the extent that the complaint concerns Internet access (rather than content). Importantly, the TIO expects providers relying on AUPs to supply their customers with a method for monitoring usage to ensure that they do not breach an AUP. In the event that a customer disputes an AUP breach, the TIO will expect the provider to demonstrate that an AUP breach has occurred.

The TIO has limited jurisdiction to investigate complaints about content-related AUPs. For example, the TIO could not investigate a complaint by a user who is banned from a newsgroup for 'offensive' behaviour and argues that their conduct did not constitute a breach of the AUP. This is because the TIO's jurisdiction does not extend to complaints about the content of a content service.

Where a complaint concerns the introduction of, or change to, an AUP that potentially amounts to a variation of the original contract, the TIO will approach the complaint in the same way as it deals with all other complaints about variations to contracts.

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