REPORT OF THE ADJUDICATOR. itouch Buongiorno. Advertising. WASPA Monitor

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1 REPORT OF THE ADJUDICATOR WASPA Member Service Type Source of Complaints itouch Buongiorno Advertising WASPA Monitor Complaint Number 5564 Date lodged 14 January 2009 Code of Conduct version 6.2 Complaint The WASPA Media Monitor lodged this complaint after testing a service provided by the WASPA member and coming to the conclusion that the service breached the Code in that it, inter alia, resulted in the automatic initiation of subscription service through a consumer visit to a WAP site. The Monitor regarded the matter as urgent and request that the WASPA emergency procedure be invoked. The sections of the Code which the Monitor, after conducting two tests, identified as having potentially been breached were: 3.1.1, 3.1.2, 3.7.1, 4.1.1, 5.1.6, 6.2.2, & The steps taken in testing the service are set out in detail below. An emergency panel convened on 16 January 2009 and, after considering the matter, the following Emergency Procedure Notice was issued to the WASPA member on 20 January 2009: Please note that the Emergency Panel has ordered Buongiorno UK/iTouch: - to immediately withdraw all advertising, in any format, which makes use of the keyword "free"; - to immediately issue instructions to the relevant channels to prevent any further airing of such adverts from the date of this notice; - to refrain from levying any charges whatsoever on any customer Page 1 of 16

2 SMSing the word "free" to the service provider in response to any advert; - where it is not possible to prevent such charges from being levied, to refund any and all charges levied after the date of this notice; - to immediately suspend the Sexy Cherry Club service until such time as it complies fully with the WASPA Code of Conduct and WASPA Advertising Rules; and - to immediately suspend any advertising of Sexy Cherry Club service on Waptrick.com or on any other forum or media until such time as it complies fully with the WASPA Code of Conduct and WASPA Advertising Rules. The WASPA member responded to the emergency panel ruling on 20 January 2009, requesting that the Secretariat clarify a procedural matter which was duly done on 21 January A formal response was filed on the same day and the matter now falls for formal Adjudication. Member Response [Adjudicator s note: there is a degree of non-alignment as between the breaches alleged and the responses provided by the member but the Adjudicator is satisfied that the issues have been sufficiently aired.] The Member s response compromised both a section by section rebuttal of the alleged breaches as also a response to the testing procedure used by the Monitor. In order to provide the proper context for this adjudication the testing procedure and the member s comments relating thereto are set out side by side below after which the member s response to the allegations of non-compliance is recorded. A diagram provided by the WASPA member and referred to in their comments is set out directly below this table. Monitor: Test 1 Using a WAP enabled phone I went to waptrick.com, I clicked on video clips, and then onto sex videos. And this screen popped up: You are about to view a page with adult content. Member s comments Waptrick.com is an independent content provider who serve as an online marketing portal for different organizations. It is clear that organizations are using the Waptrick portal to advertise their services. As in the screen shot provided, the following service Page 2 of 16

3 Please review the agreement below. - I am an adult being at least 18 years old - I warrant that it is legal to view adult material in my locale and country. I then clicked I AGREE. I clicked on the link for Hardcore porn videos And then clicked on Hard XXX vides I clicked on a the first video called: Jennifer Lo fuck so hot, then clicked on the link download Jennifer Lo fuck so hot 05 jgp video free 2. The video was then downloaded to my phone. I left the wapsite to check my balance. My new balance was R so a total of R11.13 was deducted for content that was meant to be free. When browsing through the sex videos, and clicked on hardcore porn I noticed a subsection called: Rape Fantasies. There were 19 different videos of rape fantasies. This type of content is in breach of the Code. providers are using waptrick, over and above itouch - Buongiorno: Mogasm, Cointel, Airtime Club. None of the above mentioned service providers, itouch Buongiorno included have any doings with the content provided on the Waptrick Portal Adult verification on the WAP site is a one click process, whereby the user is agreeing to the adult viewing clause. The content displayed in the sex videos category should be rated according to the adult content rating categories. The services was tested on the MSISDN This is a Vodacom number and should not be exposed to content that is over the 1.7 rating. After searching through 26 hard XXX videos the Jennifer Lo Fuck so hot 05 was found. As can be seen by the screen shot below the video was successfully downloaded on a Vodacom number. If the hardcore images are being used as a hook then the content delivered should only be of a 1.7 rating, this content offering and the delivery thereof is not by any means linked to the itouch Buongiorno service. Waptrick should be held responsible for the displaying of adult advertising on the homepage of their wapsite before the user has agreed to view adult content. We as the advertisers do not have a say where on the wapsite our adverts will be served, we provided the criteria and pay for the adherence thereof that they are placed after the AVS. As mentioned the video was successfully downloaded in our test case as well. This video was displayed as FREE as can be seen below. When starting with this test on the prepaid Vodacom MSISDN the airtime balance was R after browsing for quite some time to find the said video the balance was R A total of R3.40 was deducted for wap browsing and no deductions were made for the video. As previously Page 3 of 16

4 mentioned, itouch Buongiorno does not have any involvement with the content displayed, downloaded or purchased off of the Waptrick portal. The Rape Fantasy videos are in breach of the WASPA code of conduct, the network content rating regulations as well as the law. Based on this Waptrick and its content providers should be held responsible as this has NO doing with itouch Buongiorno. We are one of the service providers that have used Waptrick as an advertising portal. We have since removed all advertising off the Waptrick portal and have reported them and the illegal content displayed to the relevant advertising network. We believe Waptrick and their service provider are in breach of the following clauses: Members are committed to lawful conduct at all times. TEST 2: (14 Jan) Starting balance: R On a WAP enables phone I went to the bookmark: iphonewapstr04.wml? serviceid=sexy_scherrys&mk=sca_b=z612_3871 DOUBLE DILDO FUCKING with the chance to win a Apple iphone. Sexy Cherry Club: Straight licking, sucking, rubbing, sweating, panting come peep in and explore the hidden adventures of these Ever before seen uncensored videos. Click here For the most erotic dildo action. I then clicked on the Click here link and instantly received two of the same sms s on my phone. I exited the wapsite in order to check my balance and the two messages and my balance was now: R so a total of R30.14 was deducted. These monies were deducted just by me clicking on the category and I was automatically subscribed. And there were no costs displayed. Please clarify as to whether the access to Waptrick had been exited at this point or if the banner displayed opposite was in fact advertised served on the waptrick site? From the above mentioned statement this is unclear and incomplete. [Adjudicator s note: it seems clear that this was an independent exercise and that the Waptrick site was in no way involved.] The banner above is an advertisement banner that is clickable. This then directs the user to the landing page opposite. This landing page shows the customer that it is a club they are viewing and shows them the hook. In this instance, erotic videos. The landing page clearly states the to the user that it is a subscription service that is billed at R30 / 5 days and that if they wish to see terms and conditions they can visit the wap site. It also clearly states that the user agrees that by clicking on the link they agreeing that they are over the legal age of 18 years. Page 4 of 16

5 The information supplied above is incorrect as it says there were no costs displayed, it also says that clicking on the link they were automatically subscribed and that monies were deducted. If the person initiating these tests read the remainder of the advert they would have seen the price, subscription confirmation and the T&C s. There is no mention of price placing on a WAP advert in the code. Clause only refers to the pricing placement at a premium rated number With regards to the billing, the user is billed on subscribing to the service, we do not offer 1 day, week, month free on the adult service, therefore billing takes place immediately and every 5 days thereafter. It is our right as a WASP to bill our customers. Bellow it can be seen that on the 14 January 2009, the day of subscription at 14:03 we billed the MSISDN = , R30 (the price of the service). The additional R0.14c deducted from the account can only be attributed to wap billing charges which are from the network and not itouch Buongiorno. This advertisement has been removed from all marketing channels as per the sanction made against the Sexy Cherry service. If a further party at waspa would like to view the page, the below mentioned URL can be entered into a mobile phone and they will see the pricing and confirmation of subscription and AVS: iphonewapstr04.wml?serviceid= sexy_scherrys&mk=sca_b=z612_3871 We do not have any intentions of misleading the public in any way and therefore have a clause at the bottom of all our pages stating that explicit content is not available to the Vodacom customer. Content will vary from that which is advertised Page 5 of 16

6 The sms I received read: CONGRATS! u r our new Sexy Cherry VIP star, u have access 2 UNLIMITED UNSENSORED HARDCORE just R30/5 days. 2 end SMS stops to But stay & I ll cum 4 u. Sender: (no name) Received: 15:03:40 = I then smsed the word STOP to to end the service and received this message: Hey sexy I didn t understand =st1:city w:st="on">ur SMS & i really want u 2 cum join in on the fun so PLEASE call (Std rates) Hurry im waiting. Sender: (no name) Received: 15:14: When checking my balance after, 50 cents had been deducted for receiving that message. I then smsed the word stops to and this cancelled my subscription, another 50 cents was deducted. The word stops is also in breach of the Code. All advertising is in the process of being rated by the Film and Publications Board. As can be seen above the user received the welcome message upon subscribing to the Sexy Cherry service. As per clause the code states: Once a customer has subscribed to a subscription service, a notification message must immediately be sent to the customer. This welcome messages must be clear notification of the following information, and should not be mistaken for an advert or marketing message. This message gives clear indication as to what service the user is part of and what their billing denominations would be. We have no intentions of misleading the public as we felt our unsubscribe keyword was sufficient as it contained the word STOP as mentioned in Customers must be able to unsubscribe from any subscription service via sms using no more thank 2 words one of which must be stop. We felt that one work containing stop would suffice. To show we do not wish to contravene the code or mislead the public we have changed our unsubscribe keyword which can be seen above and can be retested if WASPA feels the need. The person completing these tests received an error message as they smsed STOP to the short code and not STOPS as stated in the welcome messages. The cost of R0.50c for every message sent is a bearer fee and as a cost of the networks not itouch Buongiorno. As stated in the STOP request described above must be charged at the lowest tariff rate available. This is currently being done by itouch Buongiorno. The above statement When Checking my balance after, 50 cents had been deducted for receiving that message is incorrect as none of the South African networks provide MT billing and therefore it is Page 6 of 16

7 impossible for itouch Buongiorno to do. The R0.50c was deducted a second time then the person completing these test resent the correct unsubscribe keyword to the short code Page 7 of 16

8 Turning now to the WASPA member s direct responses to the claim that it had breached the specified provisions of the Code Members are committed to lawful conduct at all times. We do not feel that we have been unlawful and we do not wish to mislead the public in any way. The content that has been raised with regards to being unlawful was content that was displayed, and sold via Waptrick.com and their service provider, ie: Rape Fantasies. We at itouch Buongiorno have no doings with this content by any means. Our advertising has subsequently been removed from the Waptrick wap site due to the illegal content displayed and has gone for classification at the film and publications board. We have also made it clear in advertising that the content displayed will vary from the content that is delivered to Vodacom customers to ensure that we are within the network content rating guidelines Customers may not be automatically subscribed to a subscription service as a result of a request for any non-subscription content or service. As mentioned previously our advertising pages clearly state that it is a subscription service and will be billed at R30 / 5 days. The content displayed on Waptrick being of a free nature is not content provided by or supplied by itouch Buongiorno and is therefore not used as a hook for our acquisitions Members must take reasonable steps to ensure that only persons of 18 years of age or older have access to adult content services. Explicit confirmation of a users age must be obtained prior to the delivery of an adult content service We have been informed by our advertising channels that adverts of an adult nature are served only to sites that request adult verification. (letters of this confirmation are currently being obtained and will be sent through to the WASPA secretaries upon receipt). This means that before the customer has access to the advert served, he / she will have to confirm that they are over the age of 18 by agreeing to the wapsites AVS clause. Further to this confirmation the user agrees then subscribing to the Sexy Cherry service that they are of the minimum age of 18. This is mentioned on the advertised page below the subscription link. We agree to add a further notice at the top of the page instructing the user that they need to be at least 18 years of age to access the content that will be sent to them in the subscription. We have been unable to find where in the code of conduct does it mention that the customer clicking on a link to agree his age is an insufficient AVS process and we, itouch Buongiorno keep record of the customer agreeing and clicking on the link. Further to this upon subscription the customer is sent a welcome messages we will include in this welcome message the 18+ restriction age. Page 8 of 16

9 Customer must be able to unsubscribed from any subscription service via sms using no more than two words on of which must be STOP We did not believe that our unsubscribing keywords were in breach of the code as the above mentioned clause stated no more than 2 words on of which was to be STOP. We had implemented STOPS (for STOP =TRAIGHT). When the person smsed in the incorrect unsubscribe keyword an error message was sent to them stating: Hey sexy I didn t understand ur SMS & i really want u 2 cum join in on the fun so PLEASE call (Std rates) hurry im waiting. This shows that we did not ignore the request from the customer but rather sent them a message to help them. This has since been changed to STOP S with a space to show that it is two separate words. This has been implemented and all messages being sent to customers now include the new unsubscribe keywords. This was in effect as of 20 January We have suspended the service and stopped all advertising, based on the above mentioned, we feel we are no longer in breach and our service can be unsuspended subject to confirmation from the WASPA secretaries and panel. All advertising will be adjusted accordingly before being sent to market. Further developments The above response was filed by the WASPA member after it received the Emergency Procedure Notice. In response the Secretariat advised as follows: On the basis of the considerable efforts that itouch has made to address the concerns raised by the emergency panel review of complaint 5564, the WASPA Secretariat is of the view that itouch has complied with the requirements of the panel ruling, and that there is no grounds for the continued suspension of the Sexy Cherry Club service. We note that this complaint will now proceed through the usual formal complaints process and will be reviewed by an independent adjudicator. In accordance with this a formal complaint notice was sent to the WASPA member who chose not to file anything further. Sections of the Code considered In addition to those set out above, the following sections of the WASPA Code of Conduct were considered: An information provider is any person on whose behalf a wireless application service provider may provide a service, and includes message originators Members will at all times conduct themselves in a professional manner in their dealings with the public, customers, other wireless application service providers and WASPA. Page 9 of 16

10 3.7. Decency Members will not provide any services or promotional material that: (a) contains a visual presentation of explicit violent sexual conduct, bestiality, incest or rape or extreme violence which constitutes incitement to cause harm; (b) results in any unreasonable invasion of privacy; (c) induces an unacceptable sense of fear or anxiety; (d) encourages or incites any person to engage in dangerous practices or to use harmful substances; (e) induces or promote racial disharmony; (f) causes grave or widespread offence; or (g) debases, degrade or demeans Provision of information to customers Members are committed to honest and fair dealings with their customers. In particular, pricing information for services must be clearly and accurately conveyed to customers and potential customers Where the words END, CANCEL, UNSUBSCRIBE or QUIT are used in place of STOP in an opt-out request, the service provider must honour the opt-out request as if the word STOP had been used All advertisements for services must include the full retail price of that service. Advertising Rules The following sections of version 2.3 of the WASPA Advertising Rules were considered: Cost OF ACCESS DISPLAY Formatting Of Access Cost Text: Access cost text must be of a size that is at least 80% of the largest access number on the page, or 15 point font size, whichever is the greater. The access cost text must be in a nonserif font The pricing text must be clearly shown being independent of any other text or image, and not be placed or formatted in a manner where it may be obscured by other text information, graphics or marks that may be displayed around it Position of Access Cost Text For each unique access number, the full and final cost of the access must be displayed immediately below, or above, or adjacent to the unique access number or Content access code in a non-serif font. The T&C text must be placed close as possible to the unique access number. Page 10 of 16

11 Position of T&C display text For each unique access number, the full and final cost of the access must be displayed immediately below, or above, or adjacent to the unique access number in a non-serif font. This T&C text must be placed close as possible to the unique access number SUBSCRIPTION SERVICES: (i) Must Use The Words Subscription Service If the Content provider is providing a continuous, subscription-like or subscription-based service, then the words Subscription Service must be prominently displayed as per specification within the advertisement as well as at each Content or service section in the advertisement where various subscription types are displayed. No acronym, letter (eg S ), number, abbreviation (eg Subs ), icon, or any other mark may be used as an alternative to the words Subscription Service anywhere in the advertisement when that Content is only available at all and/or at a particular cost as part of a subscription service. Decision Members are committed to lawful conduct at all times. 1. The submissions of the member in this regard are accepted and the conduct of the member as raised in the complaint is not found to have been unlawful. 2. Neither the Code or the Advertising Rules contain provisions that seek to exercise a degree of control over members such that they would be sanctioned in respect of other third party advertising and services aggregated on sites on which they themselves are third party advertisers. 3. There is furthermore no evidence of the member being aware of the fact that content which is prima facie illegal in South Africa was being advertised on the Waptrick portal. 4. It should also be noted that Waptrick, as deserving of further investigation as it may appear to be, is not a member of WASPA not can it be said to fall within the definition of Information Provider set out in the Code. It therefore falls outside of WASPA s jurisdiction and WASPA cannot take steps against it. 5. This aspect of the complaint is dismissed Customers may not be automatically subscribed to a subscription service as a result of a request for any non-subscription content or service. 6. The advert at the crux of this matter is reproduced below. Page 11 of 16

12 7. The Adjudicator is not able to find that the member is subscribing consumers to its service as a result of such consumers making a request for any non-subscription content or service. There is nothing contained in the above advertisement or the procedures employed by the member indicating that single content purchases are available if the link ( Click here ) is followed Members are committed to honest and fair dealings with their customers. In particular, pricing information for services must be clearly and accurately conveyed to customers and potential customers. 8. It does not follow, however, that a user would necessarily be aware that by clicking on the link they will be subscribed to the member s Sexy Cherry subscription service or that they would, after clicking on the link, be charged immediately. 9. An examination of the advert shown above indicates that the member has not complied with the requirements of section 9.2 of the Advertising Rules with regard to the manner in which the cost of access text and the terms and conditions have been set out. Page 12 of 16

13 10. The member has not clearly conveyed to customers and potential customers the pricing information for its subscription service in that it has not made such pricing sufficiently prominent in the context of the advert and in relation to the positioning of the Click here text. 11. The member is found to have breached section of the Code read with section 9.2. of the Advertising Rules Promotional material for all subscription services must prominently and explicitly identify the services as subscription services. 12. It is immediately clear from a study of the advert set out above that: the call to action is the click here link, i.e. this is the subscription mechanism; the words subscription service are towards the bottom of the advert, below the competition details and other promotional items; the words subscription service can not objectively be said to be prominently displayed not can it be said that the advert prominently and explicitly identifies the service provided by the member as a subscription service. 13. The use of the word Club does not save the WASPA member in this regard WASPA and the industry has invested a great deal of time and effort in shoring up consumer confidence in subscription services and they must be explicitly labelled as such. 14. The member is therefore found to have breached section of the Code read with section of the Advertising Rules. 15. The Adjudicator views this breach as being serious in that there is a strong likelihood of harm to consumers who will not expect to be subscribed to a service (and immediately billed) through one click on a link Members must take reasonable steps to ensure that only persons of 18 years of age or older have access to adult content services. Explicit confirmation of a users age must be obtained prior to the delivery of an adult content service. 16. The Adjudicator cannot agree with the submissions of the member as regards this section of the Code. The second sentence clearly states that confirmation must be obtained prior to delivery of an adult content service. 17. In the model employed by the member such confirmation could at best be said to be simultaneous with delivery of the service in that the subscription mechanism and the confirmation are conflated. Page 13 of 16

14 18. This might be acceptable where the advert explicitly communicates that a potential customer confirms they are over the age of 18 when clicking the link the indication that the services are age-restricted are set in the general terms and conditions and not made explicit in relation to the Click here text. 19. The Adjudicator is mindful of the fact that a reasonable person or child viewing the advert would be aware that any services offered pursuant to it were likely to be of an adult nature. 20. In the circumstances, however, the Adjudicator finds a breach of section of the Code Customer must be able to unsubscribed from any subscription service via sms using no more than two words on of which must be STOP 21. The Adjudicator is not swayed by the arguments advanced by the member with regard to the use of STOPS for its unsubscribe mechanism. The clear meaning of section 11.2 is that one of the words used must be STOP and the interpretation that there is compliance because STOPS includes STOP is unsustainable. 22. The message received by the Monitor after sending STOP is not particularly helpful as it requires a further independent action to be taken by the consumer while also containing a marketing element. The net effect is to obstruct the unsubscribe process. 23. It is difficult to find a rationale for using STOPS rather than STOP which would justify the inevitable confusion on the part of consumer wishing to unsubscribe. A great deal of time and effort has been invested in ensuring uniformity in the unsubscribe process across the industry. 24. In Adjudication 5014 the same member was found to have breached this provision and the following was stated: The service providerʼs failure to provide subscribers with a functioning short code system, regardless of the complexity of the subscription service, is a breach of 11.2 quoted above. It is not sufficient to return an error message and provide the subscriber with a call centre number. A purpose of the short code system outlined in the Code of Conduct is to provide users with a simple and effective option to terminate mobile services. Introducing a call centre defeats this purpose and introduces an additional cost both in terms of time and expense which the subscriber must bear. It is also a concern that a subscriber is expected to follow this more complex procedure to terminate a service which begins with an initial week with no charge Page 14 of 16

15 followed by a charge of R30 per month thereafter. The additional steps a subscriber must take to terminate a subscription could well take a subscriber beyond the initial week and result in a charge to the subscriber for a service the subscriber no longer desires. 25. The Adjudicator accordingly finds that the WASPA Member has breached section and notes that the member has already taken remedial action. Sanctions: 26. In assessing appropriate sanctions in respect of the breaches identified above the Adjudicator is mindful of the remedial action taken by the WASPA member in response to the ruling of the WASPA Emergency Panel. The mitigating effect of such actions are however softened by the fact that they were reactive and undertaken in the face of the suspension of the service. 27. The Adjudicator has also had regard to the nature of the breaches which show a wilful disregard for the provisions and spirit of the Code. Prominently identifying subscription services is one of the most basic WASPA rules: it is neither new nor difficult to understand. It applies irrespective of the medium and it applies without exception. 28. As regards the record of the member in formal adjudications under the WASPA Code of Conduct : The Adjudication in respect of Complaint 4967 sets out the following as one of the sanctions imposed: In addition the SP is fined an amount of R which is wholly suspended for 12 months from the date of this adjudication provided that the SP is not found guilty of breaching s9 of AV 2.3 during this period The WASPA member has a relatively high number of adverse adjudications regarding its subscription services In Adjudication 5921 the member was ordered to ensure that its terms of use are amended in accordance with Rule 9.2 of the Advertising Rules. The finding in the current matter suggests this may not have occurred In Adjudication 5014 the member was found to have breached section of the Code and was fined an amount of R for a breach of section In Adjudication 4413 a different member was fined R in respect of broadly similar breaches of the Code and Advertising Rules. 29. It does not appear to the Adjudicator that the sanctions imposed to date have served to deter future infringements on the part of the member. 30. In the circumstances the following sanction is imposed: Page 15 of 16

16 30.1. It is noted that the offending advert has been withdrawn and the member is ordered to review its advertising to ensure that it complies with section 11 of the Code and section 9 of the Advertising Rules The suspended fine imposed under Complaint 4967 is hereby activated in that the member has breached section 9 of version 2.3 of the Advertising Rules during the period of suspension The member is fined the sum of R in respect of the breach of section of the Code of Conduct read with section 9.2 of the Advertising Rules; The member is fined the sum of R in respect of the breach of section of the Code of Conduct read with section of the Advertising Rules; The member is fined the sum of R in respect of the breach of section of the Code of Conduct; The member is fined the sum of R in respect of the breach of section of the Code of Conduct; All fines are payable to the WASPA Secretariat within twenty days of date of notification of this Adjudication. Page 16 of 16