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  Reply # 526282 27-Sep-2011 16:02
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jaxar: I feel most people would have considered "If you use less than $1 a day we'll only charge for what you used" as clear enough they would not have felt it necessary to check further.

I am not sure how it's possible they could have won the case, and they are right to have been fined. I am confident they will learn from this and going forward things will be more transparent which is to everyones benefit.

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  Reply # 526285 27-Sep-2011 16:05
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Ignorance isn't an excuse, but nor was it in play here. When someone says they will charge you for what you use, as Vodafone did, they should. They heavily weighted it, toward the start of the data usage which isn't the way the prior phrase indicates, and since they didn't do that, they should have clearly outlined, which they didn't. Requiring someone to check a website for terms and conditions outside of what normal common sense would interpret is why they have ended up in this situation.

 
 
 
 


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  Reply # 526308 27-Sep-2011 16:44
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Soo... in reality this is about the VF definition of charging for what you use:
- 5c per KB, but capped at $1 (up to 10MB of use)
and the complainants view.
- That if you only used 5MB you'd only be charged half a dollar...
Despite the fact that somewhere there were printed Terms and Conditions.
It will be interesting to read the judges written decision, as it appears either VF did a poor job of covering this description in their T&C or their counsel did.

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  Reply # 526314 27-Sep-2011 16:50
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I think legally you can only make a statement about a product or service if it falls within what common sense interpretation would lead you to believe.

Despite the Geeks here seeing it VF's way, it's not because it's common sense, it's because either they have had experience with similar things, or have been bitten in the past, or have come to know about this interpretation by some other means.

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  Reply # 526323 27-Sep-2011 16:53
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networkn: jaxar: I feel most people would have considered "If you use less than $1 a day we'll only charge for what you used" as clear enough they would not have felt it necessary to check further.


I think that is a fair and accurate statement and I am not going to argue a point on if they should have checked further at least not until they first saw the assumption they made did not match what was charged.

This is very different from the claim that customers could not in any way get this information.
I'm not suggesting that this statement in anyway effects or reflects on the ultimate decision but I think it is kind of sad in an article about misleading to have misleading statements.


networkn: I think legally you can only make a statement about a product or service if it falls within what common sense interpretation would lead you to believe.


Going with the assumption this statement is 100% on the mark. I refer you to by previous  statement, " I wonder if the ruling will create more confusion about purchasing anything be it time, data or some other service in blocks than was created by the $1 for 10MB deal."




Please note: I have a professional bias towards Vodafone.

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  Reply # 526735 28-Sep-2011 13:22
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freitasm: In all I think the customer should educate themselves. If they don't understand how they are paying for something they should ask before assuming things. Ignorance is not an excuse. 
 
 



Sorry, you're wrong in this instance - and this is coming from a real life lawyer. As Hinko has already pointed out, Vodafone made a statement clearly stating that it's $1 for 10 MBs but also added that you'll be charged only for what you use, which to any reasonable person implies that if they use less than 10 MBs they would be charged at a pro-rata rate. Section 9 of the Fair Trading Act proscribes against misleading and deceptive conduct in trade and to be convicted a subjective intention to mislead is not required. What the court will ask here is whether a reasonable consumer RELYING ON THE STATEMENT(S) MADE BY THE SUPPLIER will/has been misled and whether the misleading statement was made in the course of trade.


The various other scenarios posted here to defend VF is not analogous.  Flatrate carparking providers say "$10 a day" but do not add the qualifier that "you'll only be charged what you use". Consumers are not required by law to be geniuses or to actively go and educate themselves on the statements made by companies - they are entitled to place reasonable reliance on claims made by commercial entities in the course of trade.

It's time that people stop defending the indefensible.

   

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  Reply # 526737 28-Sep-2011 13:23
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dejadeadnz:
freitasm: In all I think the customer should educate themselves. If they don't understand how they are paying for something they should ask before assuming things. Ignorance is not an excuse. 
 
 



Sorry, you're wrong in this instance - and this is coming from a real life lawyer. As Hinko has already pointed out, Vodafone made a statement clearly stating that it's $1 for 10 MBs but also added that you'll be charged only for what you use, which to any reasonable person implies that if they use less than 10 MBs they would be charged at a pro-rata rate. Section 9 of the Fair Trading Act proscribes against misleading and deceptive conduct in trade and to be convicted a subjective intention to mislead is not required. What the court will ask here is whether a reasonable consumer RELYING ON THE STATEMENT(S) MADE BY THE SUPPLIER will/has been misled and whether the misleading statement was made in the course of trade.


The various other scenarios posted here to defend VF is not analogous.  Flatrate carparking providers say "$10 a day" but do not add the qualifier that "you'll only be charged what you use". Consumers are not required by law to be geniuses or to actively go and educate themselves on the statements made by companies - they are entitled to place reasonable reliance on claims made by commercial entities in the course of trade.

It's time that people stop defending the indefensible.

   


Nicely put, I was trying to say the same thing, unfortunately I lack the same elegance by which to have communicated it.

 

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  Reply # 526772 28-Sep-2011 14:20
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Ok so at risk of being seen to argue the indefensible I will have a go. (and I've no legal leaning)

dejadeadnz:
freitasm: In all I think the customer should educate themselves. If they don't understand how they are paying for something they should ask before assuming things. Ignorance is not an excuse.  

Sorry, you're wrong in this instance - and this is coming from a real life lawyer. As Hinko has already pointed out, Vodafone made a statement clearly stating that it's $1 for 10 MBs but also added that you'll be charged only for what you use, which to any reasonable person implies that if they use less than 10 MBs they would be charged at a pro-rata rate.

The success of this argument appears to hinge entirely on ones definition of 'any-reasonable-person'. Clearly definitions vary, and there are many whose reasonableness would view this differently.

Or is the 'reasonableness' of any person not subject to query?
Is it reasonable to expect any person to read any Terms and Conditions associated with any offer?  
If not, does that imply that it would be an unreasonable expectation for any trader?  And if that is the supposition, then what's the point in having them if they can be ignored and then challenged.


dejadeadnz:
Section 9 of the Fair Trading Act proscribes against misleading and deceptive conduct in trade and to be convicted a subjective intention to mislead is not required.
Guilt by innocence?
What the court will ask here is whether a reasonable consumer RELYING ON THE STATEMENT(S) MADE BY THE SUPPLIER will/has been misled and whether the misleading statement was made in the course of trade.

freitasm: In all I think the customer should educate themselves. If they don't understand how they are paying for something they should ask before assuming things. Ignorance is not an excuse.  




The various other scenarios posted here to defend VF is not analogous.  Flatrate carparking providers say "$10 a day" but do not add the qualifier that "you'll only be charged what you use". Consumers are not required by law to be geniuses or to actively go and educate themselves on the statements made by companies - they are entitled to place reasonable reliance on claims made by commercial entities in the course of trade.

Advertising and promotions are simply that... they are invitations.
When you inquire about those promotions surely that is the time for the trader to inform you of any T&C's associated with them. If it is an online transaction you should be encouraged to acknowledge the T&C's whether these relate to the transaction or the services offered.

It's time that people stop defending the indefensible. 

Perhaps. But that assumes the Judicial outcome was both correct and indefensible 

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  Reply # 526845 28-Sep-2011 16:38
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oxnsox: Ok so at risk of being seen to argue the indefensible I will have a go. (and I've no legal leaning)

The success of this argument appears to hinge entirely on ones definition of 'any-reasonable-person'. Clearly definitions vary, and there are many whose reasonableness would view this differently.



This is partly why we have courts of law and decisions aren't made by anybody who happens to have an opinion.  On a more fundamental, however, if you're implying that there's any dispute as to how the postulated, reasonable person will be taken to behave, then you're wrong as a matter of law.

The law does not concern itself with who you or I think is a reasonable person. Court of Appeal authorities have established that the postulated reasonable person is a person of average intelligence who's fully aware of all the relevant facts (including the statements at issue by the trader). The reasonable person is taken to be entitled to take the trader's statement at face value OBJECTIVELY but is not entitled to take a strained or unrealistic approach. 

These authorities are pretty much undisputed amongst lawyers and Parliament has been aware of them for a long time. If it doesn't like how the Courts have interpreted the law, Parliament can legislate to redefine what is misleading and deceptive conduct. It hasn't. This is a society of rule of law and everyone is required to obey the law.  

Or is the 'reasonableness' of any person not subject to query?
Is it reasonable to expect any person to read any Terms and Conditions associated with any offer?  
If not, does that imply that it would be an unreasonable expectation for any trader?  And if that is the supposition, then what's the point in having them if they can be ignored and then challenged.



If you're trying to come to VF's defence, may I kindly say that putting in a whole lot of nonsensical propositions which isn't the law in relation to s 9 FTA isn't really going to help? People can, of course, disagree over whether an objective, reasonable person as postulated by the law might actually have been misled. However the problem for you is that after a full hearing before an experienced District Court Judge (who happens to have been an experienced Crown prosecutor previously) where VF was defended by one of the top QCs in this country, this court has found against VF. Unless you have some very strong, substantive arguments against the reasoning of Judge Kiernan, on the face of it her decision is entitled to a little bit of respect. Bare statements suggesting that the Judge might have gotten it wrong won't do in view of the following facts:

1. VF stated that it was 1 dollar for 10 MBs and that people would only be charged based on what they use. The latter bit is a qualifier. I (and undoutedly Judge Kiernan) took the qualifier to mean that if people used less than 10MBs, there would be pro-rata charging. In fact, we know that pro-rata charging DID NOT happen. If you're arguing that my/the Judge's interpretation is unreasonable, can you please explain what effect that qualifier was intended to have? 


2. There's a HUGE difference between a "fixed fee" arrangement (i.e. maximum of $1 for 10 MBs) that is effectively also a "minimum spend" requirement (e.g. no matter what you do, $1 minimum fee applies) versus a true "fixed fee up to 10 MBs" arrangement where the consumer gets the certainty of a fixed fee but also a pro-rata charging regime for lower usage.


3. If you're in any way implying that somehow VF (or anybody else, for that matter) should always get away with making a statement that is false and misleading on the basis that the T & Cs somehow clarify what the misleading/hyperbole headlines really meant, then the law is clear that there is NO rule to say that it is a foolproof defence to rely on clarifying T & Cs to "read down" any falsities contained in a headline. Of course, this isn't to say that the existence of T & Cs can't be relevant in determining whether a headline should be held against a trader.


4. However, if you're going to argue that the Judge didn't take sufficient account of the T & Cs or strike an adequate balance between the T & Cs and the headline, you need to actually examine and properly critique the decision. Making generalised statements that are false won't do.


5. You should also bear in mind that s 9 FTA proscribes against statements that have the POTENTIAL to be misleading and deceptive objectively. Thus liability can attach even if no one was factually confused. This addresses the market reality that the trader almost always has more information about its offering than any potential customers and serves as a market regulator in putting the onus on traders to verify claims before making them.            
  


Guilt by innocence?



Just what are you on about? Section 9 of the FTA reflects the approach taken by the equivalent UK, Australian and Canadian legislations in prescribing that the actual, subjective intention of the trader/maker of the impugned statements as not being determinative as to whether the statement is objectively misleading and deceptive. Should the Crown actually be able to prove that the trader actually intended to mislead, this will certainly entail a higher penalty.


But liability does not require an actual intention to mislead and this reflects the plain reality that to allow otherwise would allow every trader to just yell out "I didn't intend it!" as a defence. The Crown is still required to prove beyond reasonable doubt that the statement concerned was objectively misleading and deceptive.

     
Advertising and promotions are simply that... they are invitations.
When you inquire about those promotions surely that is the time for the trader to inform you of any T&C's associated with them. If it is an online transaction you should be encouraged to acknowledge the T&C's whether these relate to the transaction or the services offered.



No matter how many times you utter an untrue statement, what is wrong remains wrong. Advertising and promotions aren't just "invitations" -- the law has always attached prohibitions and consequences to the making of misrepresentations in commercial contexts. In the arena of contract law, material misrepresentations (even innocently made) can result in cancellation of the contract; in the fair trading arena, we have the FTA.  


T & Cs are relevant in terms of whether a headline might be misleading or deceptive but they aren't fool-proof defences to the making of false headline statements.  

Perhaps. But that assumes the Judicial outcome was both correct and indefensible 



Let us summarise your position. Without actually addressing any of the reasoning by the judge, you appear to think her decision is wrong. You appear to think that the law imposes unrealistic expectations upon the trader and made various rhetorical statements, none of which actually represent the law.

You have continually ignored the relevant qualifier at issue in the VF case and have not suggested what other, reasonable interpretation that the relevant postulated reasonable person under s 9 FTA can take of the qualifier. You also appear to be unconcerned with the reality that the law as it stands exists to protect consumers from the information assymetry that is typical of commerce, which also happens to be the approach of comparable jurisdictions.


Quite frankly, what legitimate critique of this decision do you have?

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  Reply # 526888 28-Sep-2011 18:23
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I'm not surprised Vodafone lost to be honest. I know there is a lot of debate over whether people should know and read the T&Cs etc, but that doesn't negate the fact that it was advertised as "customers could pay $1 for 10MB and would be charged only for what they used" which is contradictory to how $1 is actually charged.

The fact that Consumer A could be alert and figure out how the $1 is charged while Consumer B took it as face value doesn't really matter - if Vodafone advertised misleading information, they are legally liable. Back when I used to work on the marketing unit, we had checks and sign offs by legal, comms, marketing etc before campaigns went out because we were very aware of what could happen.

But to also be fair to those who were unaware of how the $1 is charged, I probably wouldn't have too if I hadn't been stung in the past, back when I didn't have a smartphone and kept accidentally hitting the browser!

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  Reply # 526901 28-Sep-2011 18:48
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oxnsox :When you?inquire?about those promotions surely that is the time for the trader to inform you of any T&C's associated with them. If it is an online transaction you should be encouraged to acknowledge the T&C's whether these relate to the transaction or the services offered.



Yes but they can't 'bait' advertise, and it must be clearly explained in the ad. They shouldn't then need to read teh fine print to get significant information, that should have been in the advert in the first place. I am not saying that is what happened in this case.

I would say that many promotions that are being run by many companies, if they were scrutinized enough, they could be running foul of the law. Personally I didn't have any issues with the way theis $1 plan was advertised as it made sense to me, but then again I am a technical minded person.

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  Reply # 526966 28-Sep-2011 22:15
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telecom is the same, they charge you for the first 10MB even if you use 0.1mb of that leaving them with 9.9mb to spare, they should actually charge for what you use then cap it at $1 for the 10mb however they then charge you a further $1 per mb when infact is should be another $1 for another 10mb block.

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  Reply # 526983 28-Sep-2011 22:58
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freitasm: This is a bit too much. The Vodafone $1 a for 10MB in court, according to NZ Herald.

Sorry, but I disagree with the case. I always thought it was intended to be $1 a day or part of it. Some people can't understand things explained to them in plain English and get all up... I side with Vodafone on this one.



this is plain stupid.

try suing Hertz for $129 a day for 120kms and only doing 25kms.

try suing Novotel for $129 a day check in 2pm check out 10am and only using the room for 6 hours.

and why has nobody, over the last 20 years, ever sued Vodafone or Telecom for offering $49 a month plans for 200 mins?

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  Reply # 526992 28-Sep-2011 23:15
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/me sighs at joker97

If you simply read some of the other posts the answer to your question would be perfectly clear. It's because in the HEADLINE of their ad's they do NOT say they will charge you as you go, there is NO premise of pro-rata billing.

Have a read of nyquists posts, they are as clear as anyone could possibly make them, as and far as I am concerned make the situation crystal clear.


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  Reply # 527005 29-Sep-2011 00:15
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networkn: /me sighs at joker97

If you simply read some of the other posts the answer to your question would be perfectly clear. It's because in the HEADLINE of their ad's they do NOT say they will charge you as you go, there is NO premise of pro-rata billing.

Have a read of nyquists posts, they are as clear as anyone could possibly make them, as and far as I am concerned make the situation crystal clear.



Agreed. There's no helping some people. Frankly, there's an unfortunate element within the so called geek world which prides itself on doing anything to whip up a superiority complex and to laugh at the plight of the so called dumb, i.e. less technically advanced.

Some of the people who vehemently defend VF here fall into that exact category. "OH I know that when you purchase data it's normally not charged pro rata and it's $x for Y amount and data and if you don't use it all up too bad. Shame on you and don't complain. Hahahahah". There is little appreciation for issues of information assymetry between the trader and the average user, nor the need to compel straightforward and easily understandable advertising messages to promote efficiency in the markets.

For those people who seem so eager to undermine consumers' rights and rules of fair trading, understand this: the FTA is a law of general application. You won't be a genius in everything and if the FTA is undermined so as to allow dodgy advertising in one arena, you can be sure that it'll be taken advantage of elsewhere. Just hope that you don't fall for anything.

    

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