Lost or misplaced devices

Summary of the issue

Complaints have been received regarding lost or misplaced mobile telephones, or SIM cards. Disputes usually arise in relation to charges for subsequent unauthorised calls made from that phone, or use of the SIM card.

Usual positions of the parties

The usual position taken by the customer is to dispute liability over paying any charges incurred by the person who had taken possession of the mobile phone or SIM card. Normally the Scheme Member will maintain that the charges have been validly brought under the customer's contract. Usually the Scheme Member will point to a clause in the terms and conditions which hold that a customer is liable for all calls made using the SIM card supplied. The Scheme Member may require a copy of the Police report that records the theft or loss.

TDR's view of the issue

In TDR's experience most telecommunication providers have clear terms and conditions stating that the customer is required to secure their mobile telephone, and SIM card, and that the customer is liable for any charges incurred by an unauthorised third party. It is also common for a Scheme Member's terms and conditions to require the customer to notify the Scheme Member immediately once a mobile phone or SIM card is lost or stolen.

TDR considers the onus for keeping a mobile telephone or SIM card secure reasonably sits with the customer. TDR also accepts it is reasonable to require the customer to notify the Scheme Member immediately once the mobile phone or SIM card becomes lost or stolen, and to provide evidence such as a Police report, if requested. TDR expects  the Scheme Member to immediately block use of that SIM card, once notification should not reasonably by the responsibility of the customer. Otherwise, TDR will generally uphold a Scheme Member's right to charge for calls incurred from a lost or stolen mobile phone or SIM card.