Disputed (data) calls to 190x and IDD numbers (Internet dialler charges)

The TIO receives and investigates complaints that are related to disputed international and 190 charges that have accrued through the use of Internet Dialler Software. These complaints will generally fall into one of two categories - either complainants deny that the calls were made from their service, or complainants acknowledge that they entered the websites in question, but deny being presented with any warnings that premium rate charges would be billed to their telephone account if they proceeded past a certain point.

The TIO’s process for investigating complaints where the complainant denies all knowledge of the calls is the same for IDD and 190x calls. However, the process for investigating complaints where the complainant claims not to have received a warning is different for 190x and IDD complaints. This is due to the fact that content providers based offshore are not subject to compliance with any Australian Codes of Conduct.

1. Complainant denies all knowledge of calls- 190x & IDD

The TIO regularly investigates complaints where telephone account holders deny that either 190x and/or IDD calls were made from their service. In such cases, the complainant often claims that:

• no one was home at the time the calls were made;
• no one was on the Internet at that time; or
• no one entered adult websites.

Prior to investigating any complaint of this nature, the TIO typically obtains the following information from a complainant:

• a copy of the disputed account with the disputed calls clearly highlighted;
• a list of the people that may have had access to the phone/Internet at the times in question (including the complainant) and, if they believe that no one could have used the phone/Internet, an explanation of where everybody was at these times, with evidence substantiating their whereabouts (e.g. attendance records from work or school);
• statements from all adults listed;
• temporary Internet files for the period the charges were accrued; and
• if applicable, details of any Internet Dialler software that remains on the complainant’s PC.

The focus of the investigation is on the circumstances surrounding the making of the call and the billing. Accordingly, the TIO will usually expect Members to investigate the carriage of the call and provide evidence that there was no fault or billing error that resulted in incorrect charges being applied to the complainant’s account.

If the charges are found to be the result of a fault or billing error, the TIO will expect the Member to waive the charges.

If the evidence establishes that the calls were made from the complainant’s service, the TIO will consider all the circumstances of the case and may continue to investigate as outlined below.

2. Complainant claims no warning given or has no knowledge whether warning given

The TIO receives complaints where the complainant acknowledges that they entered the website in question, but denies being presented with any warnings that premium rate charges would be billed to their telephone account if they proceeded past a certain point. The TIO also receives complaints where the complainant has no knowledge whether a warning was given.

190 Calls

For complaints relating to 190x calls, the TIO currently considers that the Telephone Information Services Standards Council (TISSC) is the appropriate body to investigate whether a website that utilises Internet dialler software provides sufficient notification that 190 premium rate charges will be billed to the complainant’s telephone account.

The TIO will refer the complainant to the telephone provider that has billed them for the 190 charges to register a complaint in relation to the disputed amount, and also to TISSC for confirmation that the website complied with TISSC’s Code of Practice. The TIO has negotiated a process whereby some telephone companies will liaise directly with TISSC to resolve the complaint.

The complainant is also advised that they can recontact the TIO once TISSC’s investigation is complete if they are not satisfied with the outcome.

When investigating these types of complaints, the TIO considers:

• the advice provided by TISSC confirming compliance or non-compliance with its Code of Practice;
• call usage patterns including local call analysis;
• Internet usage reports; and
• any issues related to Unlimited Credit/Overcommitment.

If TISSC confirms that there were no warnings of premium rate charges, or that the website was not otherwise compliant with its Code of Conduct, the TIO would expect the telephone provider to waive the charges. In cases where the complainant has already paid the account, TISSC will direct the 190-service provider to refund the money directly to the complainant. This scenario should be the exception, rather than the rule, as the TIO expects telephone providers to comply with Clause 8.6.1 of the ACIF Complaint Handling Code and/or Clause 6.7.1 of the ACIF Credit Management Code.

If TISSC concludes that the website responsible for the 190 data charges was compliant with its Code of Practice, and the user was fully informed of the cost and the effect of proceeding further into the site, the TIO would consider that the charges are valid and payable, subject to any issues relating to Unlimited Credit/Overcommitment.

Where charges are ultimately found to be payable, the TIO may seek a negotiated payment arrangement between the complainant and telephone provider as part of the resolution process.

IDD Calls

Prior to investigating any complaint of this nature, the TIO requests the following information from a complainant:

• a copy of the disputed account with the disputed calls clearly highlighted;
• temporary Internet files for the period the charges were accrued; and
• if applicable, details of any Internet Dialler software that remains on the complainant’s PC.

The TIO may also request information from a Member to assist in identifying the websites and whether there was a warning.

In the course of investigating these complaints, the TIO has regard to the following factors:

• any steps taken by the complainant to establish call control;
• any information provided to the complainant by the Supplier regarding call control;
• any issues related to Unlimited Credit/Overcommitment; and
• history of Internet use.

In investigating claims of this nature, the TIO will review the website data provided by the complainant in order to ascertain if any warnings were given. If it is established that the website in question did contain a warning, the TIO will then consider the accessibility and legibility of that warning.

The TIO’s investigation may result in the following possibilities:

(a) TIO unable to establish if warning was given

The TIO accepts that there will be instances where the complainant and the Member are unable to provide details of any websites visited. There will also be instances where the websites have been ‘taken down’ or relocated after the charges have been accrued by the complainant.

In situations such as these where there is a lack of available and measurable information, the TIO will have regard to the general considerations listed above as well as the fact that the Member has been unable to establish that a suitable warning was given.

Where the customer has not contributed to the quantum of the loss nor acted in any negligent way, the TIO considers that, as a general rule, it would be fair and reasonable for the Member to waive the entire amount of the charges.

(b) TIO establishes that warning was given

If it is found that the website in question contained a warning, the TIO will consider the following factors to determine whether the warning was sufficiently clear, including:

• the point at which the warning is given (i.e. was the warning given prior to charging commencing?);
• the legibility of the warning (e.g. font size, colour, positioning);
• the language the warning was given in, given the circumstances of usage (e.g. a user is accessing English sites, but receives a warning in German);
• the language the warning is in, having regard to the language used in the website (i.e. was the warning given in Italian for an Italian website?);
• if a customer will be charged even if they decline to proceed; and
• if the customer will continue to be prompted if they select ‘no’ (if a pop up box will continue to appear even where the customer has elected not to proceed).

(i) Warning was clear

If the TIO concludes that the warning is legible, easy to access and clear, it is likely that the complainant would be required to pay the charges, subject to any Unlimited Credit/Overcommitment issues.

(ii) Warning was not clear

If the TIO is satisfied that there is a warning, but that it is not in the complainant’s first/preferred language, or there is a question as to the clarity of the warning for any other reason, the TIO considers:

• the likely accessibility/comprehensibility of the warning to the complainant;
• the complainant’s international call history;
• whether the complainant has previously disputed international data calls; and
• any steps the complainant had taken to protect themselves before and/or after accessing the website (i.e. international calls barred, checked status of connection, attempts to exit the website etc).

Where the complainant asserts that the warning was in a language other than their first language, the TIO also considers the way that the warning was presented. The TIO has received complaints where complainants allege that when presented with a pop-up box in another language, they closed the box completely, or clicked what they perceived to be a ‘no’ option, but have nevertheless been billed.

If the TIO concludes that the warning was not sufficiently clear, having regard to all the above factors, the TIO would expect the Supplier to waive the disputed charges.

(c) TIO establishes warning was not given

If it is found that no warning was given, the TIO considers factors relevant to whether or not the consumer could have controlled the charges. Whilst the TIO will consider Members' attempts to educate their customers about Internet diallers and also make call control facilities available to customers, the TIO does not consider that such actions undertaken by Members are necessarily sufficient to give the consumer actual control over the charges. Nor does the TIO accept that in all cases a customer has greater control than a Supplier over whether calls such as these can be made, inadvertently or otherwise.

The TIO is not limited to considering legal issues, and may consider what is fair and reasonable in the circumstances. Where a website offers no warning, and where neither the customer nor the carrier is directly responsible, and where the customer has not contributed to the quantum of the loss nor acted in any negligent way, the TIO considers that, as a general rule, it would be fair and reasonable for the Member to waive the entire amount of the charges.

It is the TIO’s view that in general a telecommunications provider is better placed to manage the risk associated with unexpected losses arising from Internet dialler charges than an individual consumer.

Last updated: 3 November 2003
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