"It was quite heavy-handed, saying my nine-year-old had committed a criminal
offence, and they would only cancel the demand if the form was signed in the
presence of a solicitor," says Humby.
Porn links
Many other people have contacted the Guardian about the company's software.
Another woman told us her husband installed the software on his company laptop
without realising. Following our advice on discovering how, she ran a program
called Internet Explorer History View and sent the evidence.
"My husband had, as you can see, been Googling and following up on porn links.
Certainly he wasn't anticipating being billed for anything," she says. "He was
pretty terrified once he realised what was happening, and sent off a postal
order. He confessed to me the next day, mainly because the popup bills were
paralysing his work." Thanks to a sympathetic IT expert, the popup software was
removed and the couple has heard nothing since.
But who has acted legally? Is a nine-year-old breaking the law by installing
software to access a porn site - or should the porn site be prosecuted for
allowing access to a minor? Or should the billing company (here, MBS) be
responsible in the latter situation?
And are people who remove MBS's software after they have clicked on messages
saying "I fully understand the full terms & conditions" and then click "Get
Instant Access Now" which confirms that "you are aged 18 or over and have read,
understand and accept the full terms and conditions" within their rights? Or
are they, and antivirus companies who help them remove it, committing a breach
of contract with MBS?
Since writing about MBS's novel software (My PC is being held to ransom, March
1), the Guardian has learnt that a second porn site, mysexworld.com, is to
adopt it for a three-month subscription service, and that a non-pornography
video-on-demand site is also considering its use. That makes it more important
to clarify the legal position.
One aspect of MBS's operation remains clear: extensive investigation by the
Guardian and security companies has shown no evidence that it is ever installed
by stealth. In all the cases found, the program is explicitly downloaded and
installed, with the user giving permission at a number of steps, before it
runs. At that point, if MBS does not receive payment on behalf of the site, the
popups will begin.
But what of the legal position? Simon Briskman, a partner in the technology law
group at Field Fisher Waterhouse LLP, suggests that children who unwittingly
subscribe for these services are not committing a criminal offence and that it
would also be extremely difficult to enforce a contract against someone under
18 in these circumstances.
"Companies like MBS can only impose standard terms on consumers if they are
fair. Under the Unfair Terms in Consumer Contract Regulations, contractual
provisions which cause a significant imbalance in the parties' rights and
obligations to the detriment of the consumer are not enforceable." He thinks
that MBS's software is more detrimental to the user than nonpayment is to MBS,
and that ultimately those affected might take the matter to Trading Standards.
Removing the popup billing software has become a topic in the forums of PC
Advisor, a business and home PC user magazine in the UK. Briskman's advice is
that doing so is within your rights, although Micro Bill Systems may pursue you
for money - if you can be found.
"MBS could easily have found other ways of securing payment, such as taking
credit card details. They could have made it crystal clear to users that their
computers would be effectively disabled," says Briskman. "Its chosen approach
would be regarded by most of us as unfair and may well fall foul of the
regulations. Concerned consumers should complain to their local Trading
Standards and urge them to take action."
But what about those who enlist antivirus software to remove the MBS product?
MBS says it is considering legal action against Jacques Erasmus of Prevx,
following comments he made previously in the Guardian about the company; it
wants to stop Prevx's product from removing its software. Symantec - which
sells the Norton security products - has already agreed to such demands.
Having received 191 inquiries, West Yorkshire Trading Standards knows all about
the problems that many consumers are experiencing. Broadly, though, Trading
Standards covering the Leeds area, where MBS operates, backs the company's
position. "West Yorkshire Trading Standards have recently held meetings with
the company in order to investigate complaints from concerned consumers," says
David Lodge, the divisional manager. "It would appear to be very difficult to
subscribe to the service without realising. As such, any contracts that are
entered into are likely to be legally binding." But he says there will be
further meetings with the company.
Ashley Bateup, its managing director, remains enthusiastic about providing
billing services by this method. One can see why: it is not open to credit card
fraud; and as long as Micro Bill Systems can remain certain that its software
is always being installed through direct user action, it should have a good
chance of being paid.
Bateup says the company has taken considerable legal advice and drafted its
terms to be fair. However, he takes a tough line with parents like Humby.
Minors who install the software, he says, enter the contract under false
pretences, which he reckons is a criminal offence of obtaining a service by
deception.
"It is very easy for a consumer to apportion blame on a minor in an attempt to
sidestep their responsibility," says Bateup. "We have to differentiate between
a genuine minor access and any unsubstantiated claims made by an adult."
Briskman, however, says that the idea of a child committing "deception" only
applies if they do so with criminal intent - which would be difficult to prove
in a court.
Due diligence
Bateup also talks about "consumer due diligence" - that is, reading the terms
and conditions and considering what they mean before subscribing. For removing
the software yourself is likely to become more difficult soon.
"We are taking legal action against a number of companies that promote their
software as being able to remove our software," Bateup says. "Their actions
constitute an offence since they are inducing consumers to breach their
contracts with us. We are taking legal action against all companies that list
our software as malware or spyware." Meanwhile, he adds: "We continue to work
closely with Trading Standards, who remain content with the processes that we
operate."
As aggrieved consumers and software companies face Micro Bill Systems and its
unique popup billing system head on, human nature mustn't be forgotten. Some
people pay scant attention to terms and conditions. A child's curiosity and
inexperience, coupled with easily installed software, could also lead to
trouble. And where computers are shared, one unthinking person might cause
headaches for all. But if more sites begin using the same system, will we all
have to read a lot more carefully before we click on "OK"?
The Guardian
