Legal action taken against Virgin Media throttling practices

[Ignitionnet]

Originally Posted by danielf

Yes, said the judge. Why should the average customer pay for a couple of morons raping their connection 24/7?

They shouldn't of course. Virgin can take specific action against this 'couple of morons' who are using a service sold to them as unlimited in this manner or ensure they have sufficient capacity to avoid a congestion state if it's such an issue.

The flip side is also that customers whose usage was previously very moderate and generally light can be throttled by STM for a fairly normal burst of traffic, so yes the average customer is paying for said 'morons' and in any event that usage is the use of the product as described (unlimited downloads at 2 / 10 / 20Mbit depending on tier).

See what I did there?

---------- Post added at 11:53 ---------- Previous post was at 11:50 ----------

Originally Posted by BenMcr

This means the OP could end up with a unlimited, free from STM 1Mbit line (depending when the original service was taken out). You can't have it both ways.

Actually yes you can, it would not be reinstatement it would be declaration that any terms considered unfair are not applicable.

---------- Post added at 11:54 ---------- Previous post was at 11:53 ----------

Originally Posted by Consumer Direct

Although standard terms may be drafted to protect commercial needs, they must also take account of your interests and rights by going no further than is necessary to protect those legitimate commercial interests.

When will this new policy be launched?

We'll start moderating the heaviest users' service at the same time we roll out the new speed increases for Broadband XL customers.

The explanation of why STM was being deployed is not valid as it's fiction. It was deployed to calm down bandwidth utilisation and permit the 20Mbit uplift before the necessary upgrades had been made. It continues to be deployed to reduce demands on the bandwidth to each area. I'm saying that as fact because that's exactly what it is, a number of areas, especially Telewest, received hundreds of node splits to try and get the capacity in place, STM allowed the product to be deployed before this work had been completed.

Anyway, I'm not a judge and I have no idea exactly what I judge would adjudicate, nor do I want to be an armchair lawyer, I'll leave that to others

[Mike_A]

Ben: Excellent points. I cannot go too deeply into them because to do so could place me in a position that a judge may want to penalise me for. I can generalise though.

First, I go back again to the essence of a contract made between two parties. In the sense of supply of a service, let's say electricity, if a provider unilaterally restricts supply then the client does not pay for the portion not received. If, although they can supply, the excessive use by others becomes a supposed reason for restriction, and they continued to charge as though the supply had been made, they would be forced to refund.

Now, to deal with a predominant theme of this thread, contracting with an ISP becomes a way of life. The contract of provision not only allows access to websites and other sources of information. It provides access to social intercourse like chat and forums for communication with others. It provides access to leisure pursuits such as gaming. It provides access to online shopping for holidays and goods. It provides access to academic and personal research such as for health. It provides access to banking and movement of funds. In short, it becomes a wallet containing keys to a way of life, as a physical wallet holds bank cards, driving licence and contact details. If a thief approached in the street or in the home and removed some or all of the contents of a physical wallet then it would involve law and penalties.

There is no difference between the foregoing scenario and removal of Internet service. Accordingly, when an ISP imposes unilateral, uninformed, unaccounted and imbalanced conditions upon a regular user under any excuse not the essence of the originally agreed contract then, inevitably, that is an unfair practice.

Now to your OFT authorities.

Given the foregoing, you seem to have taken them out of context. These OFT references display that the terms in themselves are okay - but not the abuse of them.

It appears, overall, that your thrust of a customer being able to take the choice to go elsewhere is invalid. ISP services vary widely in different areas. To suggest a contract term allows someone to go elsewhere, or alternatively accept restrictive practices, is to ignore a fundamental right and freedom. That fundamental right is contained in Article 8 of what is generally referred to as the European Convention on Human Rights. It is now adopted within UK statute and well rehearsed in a great number of court and employment tribunal cases. It's legislates that everyone shall have the right to respect for their correspondence. Virgin Media's approach, if you are right, flies in the face of that.

[Magilla]

Originally Posted by danielf

Yes, said the judge. Why should the average customer pay for a couple of morons raping their connection 24/7?

They shouldn't, but they're not paying becuase of the morons (a rather objectional term considering the package they've been sold), they're paying because VM can't support their current customer base.

[Mike_A]

Originally Posted by piggy

thid is only my opinion

i do applaud people who champion peoples rights, but in this case i do think its someone with to much time on there hands, perhaps another failed academic?

Thanks - I found that quite funny, especially coming from someone named Piggy. Read the whole thread as regards my ability to achieve. I work productively about 16 hours a day, seven days a week. I do so because I have a passion to launch a project which will help many others around the world.

Admittedly, I have spent far more time on this thread than originally intended but it's worthwhile. I have learned a lot about the extent of the issue I have taken up. Also, if I am to take a precedent case it seems to me honourable to respond to those willing to provide feedback. Not sure how long I can keep it up but the two distinct factions for and against restriction of service make for a lively debate. A truly remarkable forum with obviously capable people and enjoyable too! Not many like that around.

[Mattey]

Originally Posted by BenMcr

Er? Why depending on the distance?


£20 for XL
£14 for L

when you have a Virgin phoneline

Wish my broadband L costed £14, Rang up about it & they basically said nope no can do & I'm stuck at L for £25. I do have a Virgin Phoneline, had one since 10 years ago.

The best I could get is £25 for L, £11 for Phone & M TV package for free.

So £36 for something less than other customers are getting, that is great!.

Now onto the topic at hand, I don't mind the STM really it is a lot better than having a monthly cap that is for sure. Although it would be nice to have the limits raised a little bit, Trying to stream legal sources after 4pm is a mission cause of STM. Makes me not bother in the end cause it is too slow.

I see STM as a bad thing for big families that all use the Internet at the same time, as those limits will soon be hit & most families I know of ask why is my internet so slow?!?! you've been throttled mate, what the hell is throttling they ask & when I explain to them what it is they feel let down by it. But obviously they should have looked into the terms e.t.c before they signed up.

[BenMcr]

Originally Posted by Mike_A

First, I go back again to the essence of a contract made between two parties. In the sense of supply of a service, let's say electricity, if a provider unilaterally restricts supply then the client does not pay for the portion not received.

If you don't have the service with Virgin because you haven't paid your bill, Virgin credit you back the lost period

If, although they can supply, the excessive use by others becomes a supposed reason for restriction, and they continued to charge as though the supply had been made, they would be forced to refund.

You example is flawed. With electricity, you pay for what you use - with internet use you pay a flat service fee.

Therefore the business model is completely different - and very few people would be prepared for ISP to charge for usage!

Now, to deal with a predominant theme of this thread, contracting with an ISP becomes a way of life. The contract of provision not only allows access to websites and other sources of information. It provides access to social intercourse like chat and forums for communication with others. It provides access to leisure pursuits such as gaming. It provides access to online shopping for holidays and goods. It provides access to academic and personal research such as for health. It provides access to banking and movement of funds. In short, it becomes a wallet containing keys to a way of life, as a physical wallet holds bank cards, driving licence and contact details. If a thief approached in the street or in the home and removed some or all of the contents of a physical wallet then it would involve law and penalties.

Even if I accept that (which honestly I don't) STM does not stop any of the above happening. If you have been managed you can still send e-mails, do online banking, shopping, research and everything else you have just mentioned.

However where ISPs have a hard usage cap (such as TalkTalk) - THEN it would do as you describe above.

But (and in general - not directly in view of this discussion) you can live your life without the internet, just as you can live without a phone/mobile/TV.

Unlike water there is no right to an internet service.

There is no difference between the foregoing scenario and removal of Internet service.

There is by a very wide margin!

Now to your OFT authorities.

Given the foregoing, you seem to have taken them out of context. These OFT references display that the terms in themselves are okay - but not the abuse of them.

The context is taken from the OFT consulation on unfair terms - which is what I thought we were discussing

So it is either fair to vary the terms or it isn't.

It appears, overall, that your thrust of a customer being able to take the choice to go elsewhere is invalid. ISP services vary widely in different areas.

Yes they do, but that does not invalidate the choice given to go elsewhere.

To suggest a contract term allows someone to go elsewhere, or alternatively accept restrictive practices, is to ignore a fundamental right and freedom.

That is exactly what the right of freedom is. You don't want/like what company A is doing, then you go to company B/C/D/E/Z

That fundamental right to freedom is contained in Article 8 of what is generally referred to as the European Convention on Human Rights. It is now adopted within UK statute. It's legislates that everyone shall have the right to respect for their correspondence. Virgin Media's approach, if you are right, flies in the face of that.

Oh please. Human Rights law for this? Human Rights law says you must have a unrestricted broadband service? Really?!!!

[Mike_A]

Originally Posted by BenMcr

Oh please. Human Rights law for this? Human Rights law says you must have a Unlimited broadband service? Really?!!!

Again, with respect [pun], you are missing the point, as with most of your response. If you contract to an unlimited service (exceptions already dealt with throughout thread] then that is the contract - therefore human rights law does play a part in setting up the legal argument where the supplier is in the public communications domain.

Why do VM people try to obfuscate issues? {Nudge, wink...}

Unlike with most other services, going elsewhere with ISPs can lead to major changes and time expenditure. Take, for example, where the client uses the ISP's email services provided as part of the package. There may be a great number of people to notify about the change, as in my case and others entering the action. Access to forums and the like of MSN need amending because passwords are matched to email address for login and security purposes. There's a whole bunch of work involved in changing ISP. It is not like changing most other types of service provider. So when an ISP like Virgin Media frustrates a contract through restrictive practices the choice to go elsewhere can never be equated with general consumer choice. The client has a right for the agreement to be kept, not forced into an unthinkable series of hoops to get what they had already contracted by attempting to go elsewhere. And if they do go elsewhere? They get bombarded with telephone calls and letters by Virgin Media, each attempting to encourage the client to go back - and it doesn't stop, even with requests to desist.

[BenMcr]

Originally Posted by Mike_A

Again, with respect [pun], you are missing the point, as with most of your response. If you contract to an unlimited service (exceptions already dealt with throughout thread] then that is the contract - therefore human rights law does play a part in setting up the legal argument where the supplier is in the public communications domain.

The contract you signed was for a residential service with a clause that allows the company to introduce restrictions/management if/when needed.

At no stage does the contract or the terms specifiy an unmanaged service.

For that you would be looking at leased line/point to point services.

Unlike with most other services, going elsewhere with ISPs can lead to major changes and time expenditure. Take, for example, where the client uses the ISP's email services provided as part of the package. There may be a great number of people to notify about the change, as in my cases and others entering the action. Access to forums and the like of MSN need amending because passwords are matched to email address for login and security purposes. There's a whole bunch of work involved in changing ISP.

Indeed there is, but that applies under any circumstance. Having to do work to change does not invalidate the change itself!

[lymmranger]

It seems tome that if this case proceeds to a full and concluded trial then hopefully :-
1/ We should all finally get to know (in english) what we can and cannot do and how much it will cost
2/ ISP`s will have to re brand their products according to 1/ above
3/ I can get back to work instead of spending over 1 hour (enjoyably) reading this thread..... well done everyone best thread so far!

possible 4/ - The OP will reinvent the net with a cheaper and faster and UNLIMITED UNMANAGED connection

[Matth]

One problem in the "variation of terms" seems to be in the notification of such changes. Does anyone other than active forum participants or frequent visitors to certain areas of the VM site know what STM is, until they hit the "why is it going slow" issue and maybe discover it is STM, or possibly just get fed up with it going slow and go elsewhere.

Current STM levels on some tiers are also a detrimental change compared to the genuine "fair usage" of earlier times. STM is now a part of service delineation, rather than an abuse prevention, and needs to be featured far more prominently in documentation if they are gong to continue using it in this manner.

[watzizname]

Originally Posted by Rob

Virgin Media have been quite clever about putting the detail of things like STM separate from the main terms of contract. That leaves the contract terms less lkely to need specific alteration since they simply refer to the policy written down elsewhere. I can't remember ever being formally told about a change in STM, capping or other policy. Vrigin media and it's predecessors use the add on policies to deal with those. I wonder whether the court's examination of the fairness of STM under contract law will hold that there was no need to properly notify consumers of the policy change. And burying it in a link from a website, which even when I know I'm lookinng for it i can't easily find, cannot possibly be deemed to have given consumers proper notice.

Anyone say nail on the head..

"But Mr Dent, the plans have been available in the local planning office for the last nine months."

"Oh yes, well as soon as I heard I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them had you? I mean like actually telling anybody or anything."

"But the plans were on display ..."

"On display? I eventually had to go down to the cellar to find them."

"That's the display department."

"With a torch."

"Ah, well the lights had probably gone."

"So had the stairs."

"But look, you found the notice didn't you?"

"Yes," said Arthur, "yes I did. It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying Beware of the Leopard."

[Gary L]

Originally Posted by leexgx

Virgin is the only high speed broadband in the uk, with no monthly download caps

No they are not.
If you are not sure about something then find out first before it goes to print.
if you are sure you are right about something then expect to be told that you are wrong about it after it was printed.

---------- Post added at 19:09 ---------- Previous post was at 19:01 ----------

Originally Posted by danielf

Yes, said the judge. Why should the average customer pay for a couple of morons raping their connection 24/7?

What you might call rape, the couple of morons might call a fiddle.
You might not like girls. doesn't mean everyone should turn gay

---------- Post added at 19:14 ---------- Previous post was at 19:09 ----------

Originally Posted by Turkey Machine

Hold on, on the last page it basically said "if you say nothing, you agree to a new contract". I don't think that's gonna hold up in court personally.....

Not when they are only available to view on a website, and not delivered to you in a letter.
is it because they are an internet company that they assume that they are legally covered by this?

---------- Post added at 19:21 ---------- Previous post was at 19:14 ----------

Originally Posted by BenMcr

New term: [Sky may] change or add to Conditions … for security, legal or regulatory reasons … We will give you at least one month's notice of any changes or additions. We will not use this right to vary the terms of any
special offer which applies to you … you may end this contract at any
time … by giving one month's notice, if we tell you … we are going to
change these conditions.

Virgin have not informed anyone about the original introduction of STM. nor the change of the original terms of STM.
they are the only company I know that only publish changes to T&C's on a website. on the assumption that you have an internet connection to read them.

It's unfair, and I think could also be found as illegal if challenged.

with a bit of luck the arrogance might bankrupt them once and for all LOL

[joglynne]

Originally Posted by Gary L

<snip>

Virgin have not informed anyone about the original introduction of STM. nor the change of the original terms of STM.
they are the only company I know that only publish changes to T&C's on a website. on the assumption that you have an internet connection to read them.

It's unfair, and I think could also be found as illegal if challenged.

with a bit of luck the arrogance might bankrupt them once and for all LOL

Just a small point but I would say that if you are being effected by VMs STM then it's more than an assumption that VM are supplying your BB and that you would have access to their website.

[Gary L]

Originally Posted by joglynne

Just a small point but I would say that if you are being effected by VMs STM then it's more than an assumption that VM are supplying your BB and that you would have access to their website.

How do you know you are being effected by something that you didn't know existed?


I can see the day in court where the judge says have you even informed anyone about STM and the change of policy you made to it at a later date?

No.
but it is mentioned on our website. somewhere.....

So it'll only be seen mostly by new people that might be thinking of having you as an ISP?

No. only if you were given clues as to its whereabouts on our site.

So it's actually intentionally hidden from view then?

Yes. even I can't find it but I've got a link to it on my desktop at work if you want me to email it to you?

[BenMcr]

Originally Posted by Gary L

Not when they are only available to view on a website, and not delivered to you in a letter.
is it because they are an internet company that they assume that they are legally covered by this?

Virgin Terms and Conditions haven't changed since Feb 2007 - and those terms they sent out to all customer in writing in the normal post as part of the 'Welcome to Virgin Media' pack

Virgin have not informed anyone about the original introduction of STM. nor the change of the original terms of STM.
they are the only company I know that only publish changes to T&C's on a website. on the assumption that you have an internet connection to read them.

The STM is published on a website, because it applied to an internet service!!

Any changes to prices or to core Terms and Conditions ARE sent out in writing and not just published on the website!