REPORT OF THE ADJUDICATOR WASPA Member (SP) Mobile Nobo

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05 February 2010

REPORT OF THE ADJUDICATOR

WASPA Member (SP) Mobile Nobo.com

Information Provider (IP)

(if any)

Service Type Subscription

Source of Complaints WASPA Monitor

Complaint Number 7435

Date received 26 August 2009

Code of Conduct version 7.4

Complaint

This complaint was lodged by the WASPA Monitor against the SP. The complainant

alleges that a free mobile ringtone internet advertisement being conducted by the SP

contravenes numerous sections of the WASPA Code of Conduct and Advertising

Rules.

The complainant visited the web site at:

http://mediad.mobilenobo.com/c/marketing3.cgi?s=crazy_animal2;l=za;m=ds

to test whether the SP’s product offering complies with the WASPA Code of conduct.

The complainant was directed to the following landing page:

Wireless Application Service Provider Association Report of the Adjudicator Complaint #7435

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05 February 2010

They then entered their carrier details and cell phone number with the intention of

getting the “crazy animals” ringtone for free.

The screen then changed to the following:


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The complainant received the following SMS notification:

“Your code: NP 101. Please keep it for future purposes”

They then entered the code into the website as prompted.

The complainant noted the following wording in green:

“Subscription completed successfully. Entrance link is being sent to your device at

this moment”

The complainant states that it was never their intention to join a subscription service.

They then received the following 2 SMS messages:

Welcome. You have access to 5 new Realtones @ R14.99/. Unsubscribe SMS ‘stop

realtones’ to 39826. Help:0-800-982-166

Your realtones package

http://wapimo.com/?p=tokens&u=27822989211&c=np101&aff=mediad


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05 February 2010

No money was deducted from the complainant’s account at this stage.

The complainant alleges that customers are attracted by the advertised wording:

“Make your mobile a living zoo, Get this crazy animals mobile tone to your mobile for

free”,

with emphasis on the word “free”.

It is not stated anywhere on the site, except in the terms and conditions, which are

way too small and not compliant with the WASPA Advertising Rules, that this is a

subscription service.

The T&Cs also show that you will receive your bonus ringtone in the first week so no

charge is taken off until the following week, when the R14 weekly deduction

commences.

The pin code notification message does not have the information required by the

Code, particularly identifying the service as a subscription service.

It is furthermore clear that WASPA’s reputation is being damaged with quotes like:

“MobileNobo operates according to the South African Wireless Application Service

Providers. Association Code of Conduct.”

The complainant alleges that the following sections of the Code and Advertising

Rules have been contravened by the SP:

a) Sections 3.1.2; 4.1.1; 4.1.2; 6.1.1; 6.2.3; 6.2.4; 11.1.1; 11.1.2; 11.1.3; 11.1.4;

11.1.5; 11.1.8; 11.1.10; 11.1.11 of the Code; and

b) Sections 9.2.1 and 9.2.2 of the Advertising Rules.


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SP’s response

The SP’s South African campaign allows users to purchase and download content in

a unique way. By subscribing, users have the ability to download any real tone from a

huge catalogue. A South African subscriber can login to the SP’s WAP site from the

link that they receive on their mobile phone weekly, browse the catalogue and

download five real tones per month.

As a promotion, first time subscribers get a real tone as a bonus beside the standard

five.

In response to this complaint, the SP states that it has made the following changes to

meet the WASPA specifications:

1. It changed the word “free” into “bonus”. The service includes five downloads

monthly and with the first signup the users gets one more as a bonus.

2. The price of the service was inserted into the first screen of the landing page.

(Price: 14.99R).

3. The text of the Terms Of Service was enlarged on the landing pages.

4. In the next step on the “Sign Page”, after the user enters his phone number,

he will receive a pin code that then needs to be filled in. The following text has

been added to the pin code notification message: to start the RealTone

subscription services, please enter the code. So the user understands that he

is signing up for the subscription services.

The SP then provided screenshots of the amended pages of the site.

Complainant’s reply

After considering the SP’s proposed changes, the complainant replied as follows:


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1. The pricing format is still completely wrong and is still in breach of the Code. It

should read as “R14.99” and not “14.99R”.

2. The pin code notification SMS is still completely wrong and should read:

“PIN CODE: SG461. U’ll be subscribed to RealTone Subscription service

from MobileNobo @ R14.99/week.”

3. When visiting the live website with the proposed amendments, the font is

completely different and more unclear than that shown in the screenshots

provided by the SP in its response. Also, it is still not explicitly shown that this

is a subscription service. The only mention of this is in the T&Cs and the

costing information, which is still in the wrong format and breaches the code.

4. The advert is only showing one example of content for the RealTone

subscription service instead of two as required by the Code.

5. As the pin code notification SMS has no information at all to identify the

service as a subscription service when entering the pin code onto the

website, the SP is not getting any separate confirmations from customers to

prove that their intention is to join a subscription service.

6. In respect to the second screenshot, it is very clear that the SP is not making

a considerable effort to show that this explicitly is a subscription service. One

can also see that the pricing information is evidently written in such a way that

the format is wrong, once again and that it is unmistakably the SP’s intention

to hide the pricing information as it is put on a row of darker bricks to make it

extremely unclear for the customer to notice. The font shown in the

screenshot in the SP’s response is much clearer and bolder than the actual

live web page.

7. The font size for the T&C’s has not been changed or made bigger at all as

suggested in the screenshots in the SP’s response and remains in breach of

the Advertising Rules.


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05 February 2010

Further response from SP

The SP confirmed that it has fixed the pricing information to comply with the

prescribed format in the code.

The text of the T&C’s has been enlarged further.

The SP included the following text in its pin code notification SMS:

“PIN CODE: SG461. You’ll be subscribed to RealTone Subscription service from

MobileNobo @ R14.99/week.”

The SP included the text: “subscription services” also on the first landing page. The

cost of the subscription is now put on a different color theme and is therefore clearly

visible.

References to “subscription services” have now been made extra visible and has

been inserted on the first page as well.

The SP has inserted in the T&C’s that a subscriber has the choice between different

Truetones in its catalogue. It also states that he/she has the choice of any five

Truetones a month from this catalogue.

The pin code notification SMS now includes the text:

“PIN CODE: SG461. You’ll be subscribed to RealTone Subscription service from

MobileNobo @ R14.99/week.” in the sms.

The SP states that it has made the pricing text clearly visible. It has been put in a

separate text box, with a different background for easy reading.

Further reply from complainant


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05 February 2010

The complainant again maintains that the SP is not explicitly identifying the service

as a subscription service.

The SP is still in breach of section 11.1.3. The SP may say you can get 5 tones per

week, but on each advert they only show one example. E.g. the baby tone on the

baby tones ad and the animal tone on the animal tones ad.

Sections of the Code considered

3.1.2. Members are committed to lawful conduct at all times.

4.1.1. Members must have honest and fair dealings with their customers. In

particular, pricing information for services must be clearly and accurately conveyed to

customers and potential customers.

4.1.2. Members must not knowingly disseminate information that is false or

deceptive, or that is likely to mislead by inaccuracy, ambiguity, exaggeration or

omission.

6.1.1. In addition to the provisions listed below all members are bound by the

WASPA Advertising Rules, published as a separate document.

6.2.3. Pricing must not contain any hidden costs. Where applicable, pricing for

content services must include the cost of the content and indicate any bearer costs

that may be associated with downloading, browsing or receiving that content.

6.2.4. Pricing contained in an advertisement must not be misleading. If multiple

communications are required to obtain content, then the advertised price must

include the cost for all communications required for that transaction. A clear

indication must always be given that more premium messages are required.

11.1.1. Promotional material for all subscription services must prominently and

explicitly identify the services as “subscription services”. This includes any

promotional material where a subscription is required to obtain any portion of a

service, facility, or information promoted in that material.


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05 February 2010

11.1.2. Any request from a customer to join a subscription service must be an

independent transaction, with the specific intention of subscribing to a service. A

request from a subscriber to join a subscription service may not be a request for a

specific content item and may not be an entry into a competition or quiz.

11.1.3. An advert for a content subscription service which includes examples of the

content provided as part of that service must include at least two examples of that

content clearly displayed.

11.1.4. Where possible, billing for a subscription service must indicate that the

service purchased is a subscription service.

11.1.5. Customers may not be automatically subscribed to a subscription service as

a result of a request for any non-subscription content or service.

11.1.8. Once a customer has subscribed to a subscription service, a notification

message must immediately be sent to the customer. This welcome message must be

a clear notification of the following information, and should not be mistaken for an

advert or marketing message:

(a) The name of the subscription service;

(b) The cost of the subscription service and the frequency of the charges;

(c) Clear and concise instructions for unsubscribing from the service;

(d) The service provider’s telephone number.

11.1.10. Where a subscription service is initiated by a user replying to a message

from a service provider where that message contains instructions for activating a

service and/or where that message contains an activation code that when inputted by

the user activates a subscription service, then that message, along with the

subscription initiation instructions and/or activation code, must also include the

subscription service information in the following format, flow and wording:

[service activation instructions and/or activation code]. U'll b subscribed to [XYZ

service] from [name of service provider] @ [cost of service and frequency of billing].

(Incorrect formats were used in their sms’s).


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11.1.11. If a subscription service can be initiated by entering a customer's mobile

number on a web page or WAP site, then a separate confirmation must be obtained

from that customer's mobile handset before any billing may take place for that

service.

Advertising Rules:

9.2 DISPLAY RULES FOR COST AND T&C INFORMATION

9.2.1 Cost OF ACCESS DISPLAY

9.2.1.1 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.

• The cost text must not be part of a colour scheme or design that could obscure

(objective) easy reading of complete details of the price.

• All access cost information must be placed horizontally

9.2.1.2 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.

• If the ad and/or offer is on a third party web site as a graphic or display text, then

the display text with pricing and contact info must be displayed on immediately

below, above or to the side of the access number to show the FULL cost to

consumer. This includes for example, textbased ads placed on Google-based (or

similar) advertisements.


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• The T&C text must be placed close as possible to the unique access number.

• T&C information must be placed horizontally.

• If multiple offers are made on the same advertisement and the cost and T&C differ

with each offering, each offering must show the cost & T&C separately and clearly.

• While cost information associated with an access number may be displayed

elsewhere on a web site (for example cost information also placed in the T&C page

of a web site), this must be done as part of a duplication of the pricing. Hence, cost

information cannot solely be placed on, for example only the T&C page where

accessing the T&C page requires that the user click away from the initial page that

displayed the access number.

• The consumer should thus not have to scroll down significantly on that same page

or follow any links to other pages to be made aware of the full pricing and T&C

associated with a unique access number.

• No cost and/or T&C information may be placed on in-vue type pages.

• No cost and T&C information may be placed on any Internet web page requiring a

particular add-on component or facility that is not generally available to all users on

the Internet. This prohibition extends to placement on pop-up and in-vue pages.

9.2.2 T&C DISPLAY RULES

9.2.2.1 Formatting & Font Criteria For T&C Text

• The T&C text must be in 12 point font size, or 50% of the largest access number on

a Web page, whichever is the greater. The T&C must be in a non-serif font

• All T&C information must be placed horizontally

9.2.2.2 Position of T&C display text


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• 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.

If multiple offers are made on the same advertisement and the cost and T&C differ

with each offering, each offering must show the cost & T&C separately and clearly.

Decision

Despite all the amendments made by the SP, the TrueTone web advertisement still

does not comply with the WASPA Code and Advertising Rules.

The advert contravenes section 11.1.1 in that the service is still not identified

prominently and explicitly enough as a “subscription service”.

The advert also contravenes section 11.1.3 as it does not include at least two

examples of the content available.

The complaint is accordingly upheld.

Sanction

In determining the sanctions to be given, I have noted that no previous complaints f

any nature have been made against the SP.

The following sanctions are given:

1. The SP is ordered to suspend its TrueTone web advert until such time as the

advert is fully compliant with the WASPA Code of Conduct and Advertising

Rules.


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2. The SP is ordered to stop all current subscriptions to the service with

immediate effect.

3. The SP is ordered to provide the WASPA Secretariat with a list of all its

current subscribers, together with proof that it has stopped all such

subscriptions, within 7 (seven) days of receipt of notice of this decision;

4. The SP is ordered to notify all current subscribers that their subscription has

been stopped and that they are entitled to a refund of all charges billed to

their account in respect of such services.

5. The SP is ordered to refund all subscribers who submit a claim for a refund

within 7 (seven) days of receipt of such claims, and to provide proof of such

refunds to the WASPA Secretariat.

These sanctions may not be suspended pending any appeal being lodged by the SP

against this decision.

Documents

REPORT OF THE ADJUDICATOR WASPA Member (SP) Mobile Nobo