Legal action taken against Virgin Media throttling practices

[MovedGoalPosts]

Putting things in laymans terms, it's worht noting the basics outlined on the Consumer Direct website.

The test of fairness is probably the most critical and includes:

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.

So, is STM necessary to protect legitimate commercial interests, and thus in the interest of the consumer?

[BenMcr]

Originally Posted by Rob

Yes, Virgin Media aka Telewest / NTL have had terms in their contract purporting to allow revisions. But does that term muster scrutiny to the courts?

On the same principle, the concept of STM, capping, throttling or indeed restricting certain types of communications on a service purported to be unlimited, might also be considered by the courts to be an unfair term of contract.

Not saying a test in court wouldn't be useful

Personally, my issue is the outcome the OP is expecting.

What he is asking for is not full re-instatement of his original contract but partial re-instatement based on one part of the service - the Traffic Managment.

This request seems to be based on the fact that the ability to vary the terms is unfair.

Surely if a court rules that the right to vary the terms is unfair, and re-instatement was required - this would be full and complete reinstatement

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.

[danielf]

Originally Posted by Rob

Putting things in laymans terms, it's worht noting the basics outlined on the Consumer Direct website.

The test of fairness is probably the most critical and includes:



So, is STM necessary to protect legitimate commercial interests, and thus in the interest of the consumer?

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

[beeman]

Originally Posted by BenMcr

Not saying a test in court wouldn't be useful

Personally, my issue is the outcome the OP is expecting.

What he is asking for is not full re-instatement of his original contract but partial re-instatement based on one part of the service - the Traffic Managment.

This request seems to be based on the fact that the ability to vary the terms is unfair.

Surely if a court rules that the right to vary the terms is unfair, and re-instatement was required - this would be full and complete reinstatement

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.

The difference here is change of terms for duel benifit (ie upgrading custmers from 1 mb to 10mb benifits the custmer directly (for obvious reasons) and benifits the company (for marketing and retention reasons).

or the change of terms for a 1 sided benifit for example STM company gets benifit (cheaper bandwith/peering costs) custmer gets no actual benifit.(im not saying they did or not change the terms just using it as an example).

example 1 would bee a perfictly acceptable change of terms as both partys are benifitting equally (though if you think the marketing benifits outweigh your speed increase then you may still have a case :P)

example 2 would almost deffenatly bee concidered and unfair change of terms as the benifit is purly1 sided with the other party now LOOSING someof the service they contracted for.

[Bonglet]

Originally Posted by BenMcr

[snip]

Surely if a court rules that the right to vary the terms is unfair, and re-instatement was required - this would be full and complete reinstatement

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.

You cant have it in both ways indeed and whenever vm increased speed it was usually a FREE upgrade just like with 20 mb and other tiers of days gone by.

Not once did i recieve or have i had a new contract through my door as a customer from telewest or vm since 2000 stating which parts of the contract they were going to change OR ammend, no matter how much they plaster this on there website im still not informed to check this website, so as an ordinary user how do i know what they are changing.

The above quote is also true since the vm rebrand of stm policy and download limits on unlimited no information given out or recived by myself that my broadband would be limited,what times, what days e.t.c.

I applaud the op for doing what he is doing hopefully as rob and others have said it will settle the matter once and for all.

[Mike_A]

Originally Posted by Rob

The real debate here, at least in England and Wales since Scottish Law can be slightly different, is whether or not, since Virgin Media are selling their services to consumers, the terms of their contract are fair.

Yes, Virgin Media aka Telewest / NTL have had terms in their contract purporting to allow revisions. But does that term muster scrutiny to the courts?

On the same principle, the concept of STM, capping, throttling or indeed restricting certain types of communications on a service purported to be unlimited, might also be considered by the courts to be an unfair term of contract.

As far as I know these are not matters yet tested in court. People can argue what they like about the wording of contracts and their merits. However legislation, particularly contract law can require the courts to look more closely. One would hope that the legal people at the likes of Virgin Media have thoroughly vetted their contracts, and other practices, against consumer and other case law.

I applaud the OP for his efforts towards bringing some legal clarity via the courts to the UK broadband industry as a whole. Whatever the outcome, the concerns over legality of caps, throttling and similar resurface periodically and it's time both consumer and provider had a definitive view so this can finally be put to bed.

Well, Rob has identified the principle ethic of the case.

As with all branches of philosophy, an initial rule arises from a proposed theory. The rule is evolved by those who would stand on the shoulders of precedent makers. On the same basis, there sometimes arises in society a wrong so plainly apparent that it needs some sort of dispute resolution. These days, government intervention or courts are preferred over drawn swords and ale-house fisticuffs.

This forum has adeptly exposed dissatisfaction with the VM approach: viz, unilateral variance of contract and service restrictions sold as unlimited. Too many people have complained.

The principle ethic of the case is to explore in legal terms for the first time the rule or rules of law by which ISPs should abide by in the light of fairness and consumer protection. Win or lose, the result is that those coming after me[1] can evolve the principles of what is and is not fair practice within, after all is said and done, supply of a new technology of remarkable scope and power.

[1] I do not mean armies of disgruntled VM staff

[graf_von_anonym]

I'm curious as to what remedy the original poster seeks.

I think there's still a question here as to the actual issue. Admittedly, it's late, and while it may have been explicitly stated I'm not sure as to whether it's "variation within contract" or "implementation of STM" that's the core problem.

In terms of contract law I'm sure that variation within terms and conditions has been tested in the courts before, probably most recently in general terms with regards to bank charges, but I'd wager there's precedent for "unilateral" variation within ancillary documents upon which contract is effectively predicated, wherein provision of services (in this case) is constrained by a subsidiary agreement.

In terms of STM, I do agree that there are other regimes which could be adopted, but for the most part the Virgin system does fulfil its objectives. The issue could be drawn with those objectives, which is to say that the seemingly punitive aspect of it is somewhat harsh. Though it is enough to say that peak usage in peak times can affect other customers negatively, so throttling a connection until outwith peak times will have a negative effect on one user and a positive effect on others. Virgin can only attempt to keep as many customers happy as possible. I can state with some confidence that no ISP in the world* can provide its full stated line speed to all of its customers simultaneously, and Virgin Media's policies are designed to accomodate usage on that basis.

I'm also curious as to what other remedy the original poster has sought. I trust, though I cannot be sure, that before resorting to the courts in what I assume to be a civil action he sought redress through Virgin's own complaint process, then, with specific reference to contractual terms through OFCOM or some other ombudsman? If not then I fear that Virgin's argument may be that his dispute itself falls outwith his contract, as he did not follow provisions therein for dispute resolution.

Of course, I'm secretly Richard Branson.

* With some provision for variation where what is provided is a leased line or similar trunking level connection. No consumer ISP would be more accurate, but even then most business providers don't. In fact, I would hazard a guess that there simply isn't enough internet for all internet users to use their connection to maximum.

[Mike_A]

Originally Posted by graf_von_anonym

I'm curious as to what remedy the original poster seeks.

I think there's still a question here as to the actual issue. Admittedly, it's late, and while it may have been explicitly stated I'm not sure as to whether it's "variation within contract" or "implementation of STM" that's the core problem.

In terms of contract law I'm sure that variation within terms and conditions has been tested in the courts before, probably most recently in general terms with regards to bank charges, but I'd wager there's precedent for "unilateral" variation within ancillary documents upon which contract is effectively predicated, wherein provision of services (in this case) is constrained by a subsidiary agreement.

In terms of STM, I do agree that there are other regimes which could be adopted, but for the most part the Virgin system does fulfil its objectives. The issue could be drawn with those objectives, which is to say that the seemingly punitive aspect of it is somewhat harsh. Though it is enough to say that peak usage in peak times can affect other customers negatively, so throttling a connection until outwith peak times will have a negative effect on one user and a positive effect on others. Virgin can only attempt to keep as many customers happy as possible. I can state with some confidence that no ISP in the world* can provide its full stated line speed to all of its customers simultaneously, and Virgin Media's policies are designed to accomodate usage on that basis.

I'm also curious as to what other remedy the original poster has sought. I trust, though I cannot be sure, that before resorting to the courts in what I assume to be a civil action he sought redress through Virgin's own complaint process, then, with specific reference to contractual terms through OFCOM or some other ombudsman? If not then I fear that Virgin's argument may be that his dispute itself falls outwith his contract, as he did not follow provisions therein for dispute resolution.

Of course, I'm secretly Richard Branson.

* With some provision for variation where what is provided is a leased line or similar trunking level connection. No consumer ISP would be more accurate, but even then most business providers don't. In fact, I would hazard a guess that there simply isn't enough internet for all internet users to use their connection to maximum.

Secretly Sir Richard, as in behind closed doors? Batman, Superman and frilly garb on occasion too? I wouldn't mind having an intelligent conversation with the real RB.

Yes, of course there were substantial attempts to resolve the dispute. Read the post about engineers visiting premises.

What you state is noted. However, it leaves out of account that services were contracted on an unlimited basis, subject to whether particular components of the Internet are busy or not, a far cry from deliberate throttling.

You are right about testing of contract variation: http://www.oft.gov.uk/...
"The OFT welcomes the Court of Appeal's very clear confirmation that the unarranged overdraft charging terms for personal current accounts can be assessed for fairness".

A complaint has been lodged with the OFT. They are the correct organisation to deal with both unfair contract and service restriction practices, the two core issues.

How long has STM been running?
I think it has been for at least 18 months so aren't you
deemed to have accepted it?
If you were still in your first year you would have accepted the STM
If outside you can cancel if not happy.

[AndyCambs]

Personally with the cost of the litigation (and it ain't gonna be with legal aid), I doubt very much that there is any - and it's all hot air...

Well I'm sure we will hear if there is a successful outcome.

However will we hear if the outcome is unsuccessful?

I'll be interested either way.

[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.....

[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?

[BenMcr]

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.....

Would you prefer 'if you say nothing then we assume you don't want the new terms, but as we going to introduce them, then we are going to have to disconnect your services after giving you the required notice?'

A company couldn't function if they had to wait for several million customers to sign and return documentation every time the prices or terms changed!

Anyway, it's not a new contract in the sense that most people assume (i.e. a new minimum term) they agree to, but a change in the terms - with an option to exit that contract without penalty if they do not accept the new terms. The minimum contract period remains as originally agreed

---------- Post added at 10:17 ---------- Previous post was at 10:08 ----------

Just as a follow up about whether a variation term is fair:

http://www.oft.gov.uk/shared_oft/rep...ns-annexes.pdf

Original term judged unfair:

Sky may at any time vary or add to these Conditions as it deems
necessary.

Action taken and judged to be fair:

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.

http://www.oft.gov.uk/shared_oft/rep...oft311cons.pdf

Such a term is more likely to be found fair if:

there is a duty on the supplier to give notice of any variation,
and a right for the consumer to cancel before being affected
by it, without penalty or otherwise being worse off for having

entered the contract.

And (when talking about price changes)

Any kind of variation clause may in principle be fair if consumers
are free to escape its effects by ending the contract. To be
genuinely free to cancel, they must not be left worse off for
having entered the contract, whether by experiencing financial
loss (for instance, forfeiture of a prepayment) or serious
inconvenience, or any other adverse consequences

[MovedGoalPosts]

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.