The Network for Online Commerce (NOC), which represents
technology conduits that connect sellers of, for example, ringtones
and chat lines, to customers of networks like Vodafone and Orange,
says ICSTIS, the industry regulator, should be pursuing Channel 4.
Instead, it is investigating connectivity providers Minick and
iTouch.
"This is a bit like prosecuting the Highways Authority instead
of the bank robbers for allowing robbers access to a bank," said
NOC Chairman Roy Ellyatt. "Minick and iTouch had nothing whatsoever
to do with the re-introduction of the contestants."
ICSTIS, the industry's regulator, disagrees. Talk of a fine is
premature, said spokesman Rob Dwight. Minick and iTouch are the
right targets and no doubt will recover any losses from their deals
with Channel 4, he argued; and in any case, while complaints were
made about the re-introduction of four contestants, only one –
Nikki Grahame – returned to our screens for more than a short time.
The remaining evictees have gone.
ICSTIS has now received almost 3,000 complaints from viewers who
thought they had evicted Nikki, Mikey, Grace and Lea for good via
text message and fixed-line premium-rate voting services. Each vote
cost around 50 pence. They say they were misled.
NOC says the decision to return the housemates was made by
Channel 4, not by Minick, which provided the mobile shortcode text
vote option, or ITouch UK, which provided the 090 numbers for
telephone voting.
"This isn't even a Premium Rate issue and ICSTIS shouldn’t be
involved," said Ellyatt. "Channel 4 decided to re-introduce
contestants long after the voting was completed and the losers were
expelled."
Dwight points out that most of the complaints were redirected to
ICSTIS from Ofcom. "They decided we were the right people to deal
with the complaint," he said. He also accused NOC of jumping the
gun. "We're not taking anyone to task," he said. "We've just
launched a formal investigation. One outcome could be that there is
no case to answer."
Other possible outcomes include a fine – and £250,000 is the
maximum for a breach of the ICSTIS Code of Practice; or an order to
refund voters; or a reprimand. If a third party proves to be
culpable for breaches of the code, that will be taken into account
and reported fully, said Dwight.
The investigation will last 12 weeks. "If a refund is ordered,
all sanctions are against the service provider. They deal with
practicalities of that. They will no doubt deal with Channel 4 and
[Big Brother producer] Endemol. We're not interested in the
minutiae of who pays and how."
The dispute between the trade body and the industry regulator
transcends Nikki's return to the Big Brother house. For a long
time, the trade body has wanted new rules to shift liability from
service providers to content providers and ICSTIS has resisted the
change.
ICSTIS argues that service providers must carry responsibility
for their customers.
"You need an identifiable party," says Dwight. "Someone has to
take responsibility and be accountable in the eyes of the law." He
says content providers are sometimes difficult to identify. It is
often a much smaller and less reputable company behind the content
than Channel 4; and ICSTIS has to deal with the service providers.
"If they can suggest a workable alternative, fair enough," he said.
"But we've dealt with providers calling themselves 'Mickey Mouse'
in the past with fictitious contact details."
Ellyatt dismissed this as being analogous to executing the
parents of a murderer because the murderer himself is evasive.
"It's a specious argument," he said.
Under the current ICSTIS Code of Practice, service providers are
responsible for compliance with the Code "and for what goes out
over their lines," explained Dwight. But he points out that service
providers "are not taking in on the chin": they make a lot of money
from customer content providers, and they have contracts in which
they protect themselves against financial loss should they be fined
because their customers breach the Code.
A revised Code of Practice is expected to be published in
October this year, subject to approval by the European Commission.
It provides that, where a third party accepts responsibility for
code breaches, that third party will also be liable to accept
responsibility for any penalty. Therefore service providers will
escape liability in some cases. But nothing changes if the third
party remains silent or refuses to accept responsibility.
That change does not go far enough for Ellyatt. "People in the
middle, who provide the network, are facilitators," he says.
Ellyatt considers Channel 4 the true service provider, for the
purposes of liability. He describes Endemol as Channel 4's
contractor. "It's Channel 4's programme," he says. "They put the
numbers up [on screen]. They're responsible for the programme."
Ellyatt wants a new system of registration for content providers
such that, when a company like Channel 4 wants telephony support,
it has to provide its registration number. A central database
should keep information about each registrant, including
adjudications against them that facilitates the duty on service
providers to perform due diligence on their customers.
Dwight argues that past adjudications are available at the
ICSTIS website. Since June, it has been possible to search against
a content provider's name to find details of previous
adjudications. But service providers must do more, he says. "Due
diligence goes further than checking whether someone has [breached
the Code in its] history," he argues. "Barred company directors,
discharged bankrupts, Companies House records and name and address
details have to be checked."
Dwight does not see a need for a new database. "If anyone finds
due diligence difficult we will meet [them] and talk through what
due diligence is. Only a handful say it's difficult."
Again, the regulator and trade body disagree. "Service providers
are getting a lot of money from services going out on their
numbers," says Dwight. "They're taking a lot of revenue – so it's
only logical that they accept some form of responsibility."
