TDR Case Note T004252 (2010)
Fraud - charges for premium text messaging services.
The customer subscribed to mobile phone services with the Scheme Member Provider (Provider). In January 2010 the customer started sending text messages to a woman on a ‘singles’ chat website. In February and March 2010 he received accounts from the provider for charges of $5,817 and $5,374 respectively for the premium text message services, at a cost of around $4 per text message. The customer lodged a complaint with the TDR service regarding those text message charges.
The customer confirmed that he had exchanged texts with the woman but had stopped after a few texts, asking her to ring or text him directly. He then discovered that she did not live in New Zealand and her interest was to drive up traffic through the website with computer generated messages to benefit the website owner overseas. The customer considered that this was deceptive and fraudulent. He requested the provider to decline payment to that website and cease all dealings with them.
The provider responded that its terms and conditions indicated that it was not responsible for transactions between customers and third parties. It did not control the services accessed by customers and was unable to regulate costs raised by third parties. The provider was also unable to monitor the customer’s account for high usage. It was the customer’s responsibility to confirm the price and conditions of any services he chose to use.
The essential issue was whether the provider was entitled to seek payment of the costs of the premium text messaging services.
The adjudicator found that according to the contractual terms and conditions, the provider was not responsible for any charges incurred from third parties, in relation to third party services accessed. With reference to clause 12 of the Customer Complaints Code (the Code), there was a similar provision which indicated that “the customer is liable for the charges for all the services provided, no matter who uses them”. The customer had acknowledged his use of the premium text service. Under his contract with the provider, he was liable for any charges subsequently incurred. In addition, the adjudicator found that the singles chat website clearly advised customers of the text message charges. There was insufficient evidence to show that the customer had been misled by the website. The adjudicator therefore considered that the customer was liable to pay the full cost of the premium text messaging services as reflected in his accounts. The adjudicator commented that the customer could consider taking a case against the third party if there was sufficient evidence to make out a claim of deceit or misrepresentation on the part of the third party, namely that the woman the customer had been communicating with was acting only to inflate the potential fees for the third party.
The adjudicator did not uphold the customer’s complaint and concluded that the customer remained liable to the provider with respect to charges incurred for his use of the premium text messaging services. There were therefore no remedies awarded.