Premium Rate Fraud:‘Mere Conduit’ alibi

[El Gringo]

http://www.phonepayplus.org.uk/pdfs1...08%20FINAL.pdf

MINUTES OF THE PHONEPAYPLUS BOARD MEETING THURSDAY 20th November 2008

6.1.3
‘Mere Conduit’ issues within e-Commerce Regulations 2002
Due to a conflict of interest as a member of the Tribunal on December 9th,Bob Chilton absented himself from the presentation given by Ted Lean as to the ‘Mere Conduit’ defence available under the E- Commerce Directive 2000.

http://eur-lex.europa.eu/LexUriServ/...0L0031:EN:HTML

Section 4: Liability of intermediary service providers

Article 12

"Mere conduit"

1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:

(a) does not initiate the transmission;

(b) does not select the receiver of the transmission; and

(c) does not select or modify the information contained in the transmission.

ok so the fixed line and mobile networks (and Andrew Bud mblox ) want to use the analogy of being just a neutral pipe as their defense for the part they play in Premium Rate Fraud.

The analogy that better describes the part the network operators play would be to compare them to the mail postal service. A postal service that has well as delivering mail has also agreed with a milk company to deliver milk to customers and to bill those customers for that milk on behalf of that milk company.

When does a mail man stop being a 'mere' mail man and become a milkman. Is the role the Network operators play in delivering 'milk' that of a road or a milk company?

The problem with this analogy of course is that the Network Operators refuse to accept responsibility for the 'milk' by claiming it's just part of the ordinary mail while at the same time trying to bill on the door step for the value of the milk.

It could be that the Network Operators and Premium Rate Industry Service Providers are being allowed to misuse this regulation for something it was never originally intended for.

"service provider is not liable for the information transmitted" but equally it doesn't say the receiver is liable for the information transmitted. It simply states the Service Provider (Network Operator/mere conduit) isn't liable for information transmitted on through their network. It doesn't say a Network Operator (nor Andrew Bud ) can bill the receiver for that information irrespective of whether the receiver has requested that information or not.

[Worldlife]

Wriggle, wriggle aided by the legislation.

It is obvious that there must be a scam involved if an 80 year old grandmother the sole occupant of a house is being charged for premium rate telephone calls.

It is true that she might have been held at knifepoint whilst a burglar made a premium rate call and therefore legally the call was made from and chargeable to the property..

It is equally a crime to induce the elderly to get involved in premium rate calls when it is not made clear to them that phoning a certain number will result in heavy charges (e.g. ending up with £15 to £30 bill to ring a scam number alleging to deal with a parcel delivery that could not be made)

The customers should not suffer from these frauds but they should be kicked back immediately to the lax controls on distribution and registration of these premium number services.

Our regulators and Members of Parliament should be asshamed of themselves

[El Gringo]

Wriggle, wriggle aided by the legislation
[]
Our regulators and Members of Parliament should be ashamed of themselves

Originally Posted by Worldlife

http://www.theregister.co.uk/2008/06...lus_text_spam/
Phone watchdog plans text spam clampdown
6th June 2008
PhonepayPlus, the regulator responsible for the premium rate and phone-paid services industry, is planning to clamp down on the black market in lists of mobile numbers

George Kidd,"The Information Commissioner has got a rotten job," he said. "He's got the wrong tools available to him. A £5,000 fine after a six month investigation? I can levy £250,000 after four weeks."

Phonepayplus does not and can not investigate possible misuse of data list. The Information Commissioner can. So why is George Kidd saying this? Why does he want one of the regulators that can address one of the major problems behind massmarketed premium rate fraud kept at arms length?

So who is/was George Kidd?

http://findarticles.com/p/articles/m...s_/ai_n7416977

From 1990 to 1994 Kidd was British Consul and head of Inward Investment operations at the British Consulate-General in Chicago.

A country that has poor rights for workers is more attractive to foreign companies, equally a market place that has poor consumer protection (because of regulatory failure) is attractive to inward investment.

and who was one of the people that was instrumental in producing this 'better regulation' that has left the consumer with no effective protection from premium rate fraud?

http://www.publications.parliament.u...980704/sel.htm
SELECT COMMITTEE MEETINGS
29 JUNE - 2 JULY 1998

DEREGULATION

Subject: The Deregulation Order-Making Process
Witnesses: Mr Christopher Haskins, Chairman, Better Regulation Task Force, Mr George Kidd, Deputy Director, Better Regulation Unit, Sally Pickles, Head of Task Force Secretariat and Deregulation Orders

George Kidd: "consumers also have to protect themselves"

[mike99]

Returning to the milk and mail analogy .........

The "mere conduit" defence could reasonably be used by the Royal Mail (in its role as a conduit for post) because (by and large) the Royal Mail has no real control over what people put into the postal system (although even that changes if the Royal Mail makes a contract with a particular junk mail firm to collect the junk and distribute it).

If, however, the Royal Mail starts to deliver milk and bill the recipient on behalf of the dairy, everything changes. The Royal Mail has made a contract with a particular dairy to deliver its milk and now has responsibility to the consumer for the quality of the milk and for establishing whether or not the consumer really has ordered milk. If the Royal Mail knowingly chooses to do business with a dairy it knows to be crooked, then the Royal Mail is implicated in whatever crimes result.

[El Gringo]

or to put it another way

http://www.publications.parliament.u...t/51219-39.htm
19 Dec 2005
Internet (Rogue Dialling)

Alun Michael: If there is a problem on the road, that has nothing to do with the car that is driven over it. Responsibility for the vehicle and its safety is governed by legislation. It must have passed its MOT, and it must be safe. That is entirely different from the provision of the highway. I think that my hon. Friend has confused and conflated a number of issues.

http://www.google.co.uk/language_tools?hl=en
unfortunately 'google translate' doesn't do this particular dialect of bollox