Bringing your Billpay phone on your citybreak? Think twice -a cautionary tale.
I am currently being pursued by Meteor for €7,000 worth of roaming charges incurred on my Meteor billpay phone. These charges were incurred by thieves when my phone was pickpocketed on holiday in Barcelona and weren’t immediately apparent until an unusually high phone bill arrived a month after my trip. I had unfortunately delayed in reporting the phone stolen until the day following the theft, so Meteor are insisting I am liable for the charges. In efforts to force me to pay, they have unlawfully reported me to a credit reference agency without obtaining a court judgement holding me liable.
My situation is not unique. It has resulted from a well-recognised scam ongoing for at least the last decade in several European citybreak destinations popular with Irish tourists, particularly Barcelona. The scam involves organised criminal gangs setting up premium rate toll phone lines for maximum revenue, pickpocketing tourists and using their simcards to rack up extortionate roaming charges by calling their own premium phonelines. UK media reports have even detailed accounts of thieves using conference-calling facilities to facilitate simultaneous calling of several scam hotlines at once in order to more rapidly accrue charges. A brief internet search demonstrates that this scam appears to be reaching unprecedented levels. In attempting to extricate themselves from extortionate charges, several customers with strikingly similar stories have approached various media outlets in the UK to highlight their situation. Although I cannot find media coverage of similar Irish cases, I surmise that given the volumes of Irish tourists heading overseas, we likely have extensive undocumented incidence of this phenomenon.
The typical scenario appears to be that of a billpay contract customer in a similar predicament to my own. Having been pickpocketed on holiday they are then faced by their phone company with liability for excessive roaming charges on their next bill (frequently in the region of >20K GBP), stonewalled by both their phone company and Consumer Ombudsman, and subsequently referred without a court ruling to credit reference agencies and pursued doggedly for non-payment.
These cases serve as a cautionary tale to highlight the ongoing vulnerability of the average Billpay customer using their phone abroad, even those who have taken apparent steps to keep their phones secure. Most people fail to pin-protect their simcard in addition to their handset, leaving it significantly vulnerable to use by thieves.
Developments in EU law has provided some protection to the consumer with regard to specific costs of various roaming services: The "Eurotariff" for roaming caps the cost of using data roaming services worldwide at €50. In addition there is a legal requirement for notification of charges by the service provider when crossing a border within the EU. Problematically however, there is still no specific EU law stating that phone companies must formally monitor roaming spending or put in place automatic “caps” on suspicious levels of spending. The law has not kept up with the rising criminality targeted at tourists using billpay phones abroad. UK phone industry Regulator “OfCom” has rallied for urgent need for changes to the law since at least 2012 , instructing phone companies to put credit-card-style automatic “caps” in place. Most of the major UK phone companies initially signed up to adopt this policy, however these changes have not yet eventuated. In Ireland “ComReg” (the equivalent communications industry regulatory body) is also yet to initiate similar changes. The mobile phone industry are clearly not capable of policing themselves in an adequate manner.
Phone companies such as Meteor in Ireland continue to emphasise the responsibility of the consumer in reporting a stolen billpay phone in a timely manner, boldly proclaiming that contracts entitle the phone company to the full cost of calls after a phone is stolen , whether charges were accrued personally by the customer or not. On first glance, phone companies might seem to be acting within the law in blindly placing all liability on the consumer. From a practical perspective however this seems grossly unjust, as in most cases by the time the stolen phone has been reported, thieves have already managed to incur significant roaming charges, with providers insisting the consumer foot the bill.
There is no legal precedent or caselaw on this subject and thus, a significant legal grey zone. Problematically, without a case precedent, consumer regulatory bodies (ComReg in Ireland) state they cannot recognise that the behaviour of phone companies in pursuing payment of disputed roaming charges after phone theft is unjust or unlawful. Recently this legal loophole has generated significant UK consumer media attention (pioneered most prominently by The Guardian’s well-respected Finance & Money section) and consequently scrutiny and commentary from the legal community which demonstrated that if challenged in court, the law would likely support the consumer. Indeed, examining the law more closely, it seems implausible that a phone company would succeed in court in winning a claim forcing a consumer to pay for charges for calls made after a theft was reported.
The law requires that services should be delivered with “reasonable care and skill”. In the case of mobile phone roaming services this insinuates that a phone company should be expected to spot unusual patterns in usage of the phone and to instantly block a phone with suspicious levels of roaming activity. When a credit card is stolen, banks routinely flag suspicious spending in real time and intervene, blocking the card, bearing the loss and waiving the liability to the consumer. Mobile phone companies generally do not have proper systems in place to flag suspicious activity in real time to block phones after theft to prevent excessive charges. There is usually significant lag in recognising suspicious patterns of activity and high volume overseas bill spending often taking days to weeks to be logged on their systems. This was certainly the case in my scenario- I switched from billpay to Meteor’s pay as you go service roughly 36 hours after the theft, uninformed of the extortionate roaming charges attributed to my account as Meteor’s system had apparently not yet logged them! . Failure by the service provider to do this could be deemed to contravene the “reasonable care” provision if pursued in a court setting.
The issue of liability in cases of disputed roaming charges arising from theft overseas has trundled on for almost a decade and no phone company has yet wanted to test its position in court, almost certainly because companies are obtaining legal advice that they could not win. It is in companies interests to avoid a judgement in favour of the consumer as once a precedent has been established companies will legally have no choice but to change their behaviour in pursuing payment.Giving credence to the idea of the industry’s desire to avoid a landmark precedent, there have been consistent UK media reports of phone companies settling out of court.
Several strikingly similar consumer accounts of near-identical experiences with Vodafone and O2 pertaining to disputed roaming charges arising from theft overseas have recently appeared in the media. Georgia Harris, a HR worker from Bristol, Sarah Harvey, an NHS worker from Brighton , and Owain Roberts and Osian Rhys Edwards, teachers from Wales have all recently had their cases settled out of court after appearing in various UK media outlets drawing scrutiny towards the current situation.
I read with particular interest the details of a prominent 2014 case which garnered extensive UK media attention involving young Welsh Vodafone billpay customer, teacher Mr Osian Rhys Edwards who had been pickpocketed during a citybreak in Barcelona. Mr Edwards appeared in an article in The Guardian’s excellent “Finance & Money” section detailing how, despite Mr Edwards having reported the phone stolen immediately after the theft, Vodafone had demanded payment of roughly GBP 20,000 in outstanding roaming charges and unlawfully threatened referral of his case to a credit reference agency for non-payment. Following intense media scrutiny, Vodafone offered to reduce its charges but somewhat incredibly continued to pursue Mr Rhys- Edwards for 10,000 GBP.
Richard Colbey, an eminent Barrister based at Lamb chambers in London independently contacted Edwards offering to challenge Vodafone on his behalf on a pro bono basis . The case had resonated with him as he had been faced with similar albeit lesser demands for payment when his daughter’s phone was stolen years prior. He was incredulous when Vodafone did not completely relent following the Guardians initial coverage of the story. He held that the case would have been clear-cut in favour of Mr Edwards if it had ultimately gone to court. Following the barristers interaction with Vodafone, the pursuit for the disputed charges was dropped, with the case ultimately settled out of court. The reception in the legal community was that the arguments highlighted by the barrister in Mr Edwards’ case could prove instrumental in winning a landmark judgement against a phone company if a case went to court in the future. The barrister emphasised the statutorily implied provision of the phone contract that Vodafone would provide its services “with reasonable care”. It was highly suspicious that a billpay customer should suddenly call premium rate numbers overseas to the cost of several thousand pounds- activity spectacularly outside the phones normal use. The phone company had failed to have a system in place recognising this and appropriately blocking the phone, which he held constituted a breach of contract provision for “reasonable care”.
Phone companies are aware of the ease with which premium-rate services are increasingly abused and have protective clauses with premium- rate providers exempting them from paying when artificially generated calls are made and would likely never have agreed to pay out extortionate amounts incurred by gangs. Short of accusing phone companies of collusion and conspiracy with criminal gangs, the barrister in this case held that attempting to pass on the roaming charges on to the customer could be considered an effort to profit from proceeds of criminality, or “unjust enrichment”.
The barrister emphasised that given that the phone company had not first gone to court to obtain a judgment holding Mr Edwards liable, they had thus behaved particularly unjustly in attempting to obtain payment by threatening to report him to a credit reference agency. This behaviour could be interpreted as undue harassment and defamation, akin to my current situation with Meteor. Phone companies are opportunistically hoping that the average consumer will simply pay up for charges when threatened with referral to a credit reference agency for fear of a bad credit rating and the future possibility of being unable to obtain a mortgage. It is concerning to note that in Ireland there is no clearcut specific system of recourse via which consumers can flag unjust or defamatory referrals to credit reference agencies by large corporations. These cases highlight the actions of large companies in using significant intimidation to force consumers to pay sums which they have no contractual or legal entitlement to. Ultimately until a clear precedent is established forcing the behaviour of the mobile phone industry to change, the onslaught of similar disputes seems likely to continue. Until then, the only sure-fire way to protect oneself from unwanted overseas roaming charges on a billpay phone seems to be to “pin-protect” the simcard in addition to the handset, or further still, completely forgo the potential liability involved with billpay phones and simply to use a ”pay as you go” sim when abroad. In the meantime, the cases of myself and the other customers in the UK media should remain a stark cautionary tale to the average Irish customer when using a billpay phone abroad.