Thursday, 13 October 2011 Page 1 of 22 REPORT OF THE ADJUDICATOR Complaint reference number: #7317 WASPA member(s): Foneworx Membership number(s): Complainant: Public Type of complaint: Unlawful Lottery Date complaint was lodged: 2009-08-10 Date of the alleged offence: 2009-08-10 Relevant version of the Code: 7.4 Clauses considered: 3.1.2, 3.5.1, 3.5.2, 3.9, 4.1.1 Relevant version of the Ad. Rules: 2.3 Clauses considered: 8.2.2 Related cases considered: 7103, 7104, 7105, 7289
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Annexure C - Reply ----- Original Message ----- From: Graham Groenewaldt To: <REMOVED BY ADJUDICATOR> Sent: Thursday, August 13, 2009 9:02 AM Subject: [WASPA.complaints] WASPA Code of Conduct complaint Ref:# 7317
Dear WASPA
We refer to the complaint from Mr. H. Senekal lodged against us and respond as follows:
Mr. Senekal has been in contact with us via e-mail requesting information regarding this
campaign which we have forwarded to him. We have attached a copy of the e-mail
correspondence between him and ourselves for your reference.
Mr. Senekal's complaint refers to clause 3.5.2 of the code as attached below. Our understanding
of this clause is that this refers to the transmitting of content. Please be advised that this service
is NOT = delivery of content or subscription service. It is a simple product promotion, which has
been promoted via radio and in-store (See attached)
We have again looked at the mechanics of this campaign and still feel that it fully complies with
the code. Please advise if there is anything we are missing and we will be sure to rectify asap.
"3.5. Content control
3.5.1. Members must not knowingly transmit or publish illegal content.
3.5.2. If a member becomes =ware of illegal content under that member’s control, the member must,
immediately suspend access to that content. Where required to do so by law, the member must report the illegal content to the relevant enforcement authority.
3.5.3. Members must co-operate with any content orders lawfully issued by enforcement authorities."
Below is a copy of the correspondence with Ant Brookes regarding this issue.
Should you require any further information, please call the undersigned at your convenience
Regards
Graham Groenewaldt
FoneWorx
<REMOVED BY ADJUDICATOR>
----- Original Message -----
From: "Ant Brooks" <<REMOVED BY ADJUDICATOR>>
To: <REMOVED BY ADJUDICATOR>
Sent: Tuesday, August 04, 2009 12:34 PM
Subject: Fwd: Fw: [Fwd: R1million Competition]]
Hi Graham,
Feedback from the WASPA monitor:
| This leaflet is actually fine. |
| They could have inserted a copy line on the reverse, close to the
| short code: "SMS's charged at R2-00". |
| But I would never have lodged a complaint against them for this | leaflet.
Warm rregards,
Ant Brooks
WASPA Secretariat
----- Original Message -----
From: "Ant Brooks" <REMOVED BY ADJUDICATOR>
To: "Graham Groenewaldt" <REMOVED BY ADJUDICATOR>
Sent: Tuesday, August 04, 2009 9:24 AM
Subject: Re: Fw: [Fwd: R1million Competition]
Hi Graham,
Just to confirm, I've passed this on the to WASPA Monitor for an opinion. I've also asked the complaints team to check if we've
received any consumer complaints regarding this promotion. (I don't think so, but would like them to verify that.)
Wireless Application Service Provider Association
Report of the Adjudicator Complaint
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Thursday, 13 October 2011 Page 14 of 22
Warm regards, Ant Brooks
WASPA Secretariat
---
Graham Groenewaldt =rote: Hi Ant
FYI
regards
Graham
----- Original Message ----- From: "WASPA Complaints <REMOVED BY ADJUDICATOR> To: "Graham Groenewaldt" <REMOVED BY ADJUDICATOR> Cc: "Complaints" <[email protected] Sent: Wednesday, August 12, 2009 8:47 AM Subject: [formal] WASPA Code of Conduct complaint Ref:# =317 Dear WASPA member, The attached complaint has been lodged with WASPA against Foneworx. This complaint is being processed according to the formal complaint procedure described in section 13.3 of the Code of Conduct. accordingly: - You have five working days to respond to the complaint, and to provide the WASPA secretariat with any information you deem to be relevant to this complaint. - after five working days have passed, this complaint, together =ith your response (if any) will be assigned to an adjudicator for review, and if upheld, determination of appropriate sanctions. - You do not have an obligation to respond to this complaint. Should the WASPA secretariat not receive any response from you within this time period, it will be assumed that you do not wish to respond. - Your response, and any other correspondence relating to this complaint, must be sent to <REMOVED BY ADJUDICATOR>. Correspondence sent to any other address may not be deemed to constitute a formal response. - The WASPA Secretariat will confirm receipt of your response. If you have any questions regarding the Code of Conduct or the complaints procedure, please address your queries =to <REMOVED BY ADJUDICATOR>Please confirm your receipt of this message. Warm regards, WASPA Secretariat --- A copy of the complaint follows below --- Complainant : <REMOVED BY ADJUDICATOR> Referred = Date : 2009/08/10 Wasp_Service : Foneworx
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Description : See attached fax complaint received =BR Status : Formal Attached file : =7829734_Foneworx.pdf
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Annexure D - Correspondence From: Graham Groenewaldt <REMOVED BY ADJUDICATOR>
Sent: 07 August 2009 07:24 AM
To: <REMOVED BY ADJUDICATOR>
Subject: Re: Fw: [Fwd: R1million Competition]
<REMOVED BY ADJUDICATOR> We have asked WASPA to review the promotion, which they have now done, and they concur that this promotion is not =n breach of the WASPA Code of Conduct. Please note that I referred to the cash prizes in terms of the lotteries Act, and not the WASPA Code of Conduct. I also made reference to Cash in terms of certain provisions of the Lotteries Act. It is important that one also considers the provisions of the Consumer Protection Act in conjunction with the lotteries Act This is important as the CPA repeals section 54 of the lotteries act and thus the Position becomes more subtle and complex. With all due respect, it seems you do not fully understand the difference between =AS lines and Short Code PR SMS numbers. In the spirit of transparency, we therefore invite you to meet with us for a cup of coffee and an opportunity to discuss the complexity, which should give you a much better understanding of the industry. I would urge you to contact me to set up a meeting at our mutual convenience. Please be advised that should you not accept this invitation and the opportunity to avail yourself of the full picture and to gather =he facts, and rather go to print with an article that is inaccurate, we reserve our rights
Regards Graham Groenewaldt FoneWorx (Pty) Ltd <REMOVED BY ADJUDICATOR> ----- Original =essage -----
From: <<REMOVED BY ADJUDICATOR>> To: "Graham Groenewaldt" <<REMOVED BY ADJUDICATOR>>
Sent: Tuesday, August 04, 2009 11:54 AM Subject: Re: =w: [Fwd: R1million Competition] > Hello Graham, Thanks for the reply. > > I undestand your position in the promoting of the competition and that you > are doing so on behalf of a client. However the code of conduct and > advisories from Waspa state clearly that the SP, because you ae bound by > contract with the NP and the IP you are fully responsible for their deeds, > so as to say. Thus if they are contravening the Lottereis Act, which does > not fall under the control of WASPA or any other act for that matter, say > the act governing unfair business practises, (although I have not yet seen > a contract between the SP and the NP and the IP), suc h a contract should > point out that a premium short code not be used for illegal purposes. > > Foneworx has supplied a VAS rated short code. This as you know mean Value
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> added Service. So the user, the public sending the sms must in return > receive something of value, a ringtone perhaps. Here they recieve no > benefit and they pay for the call to the financial benefit of foneworx and > the others. Do you think it is fair business practise to let a person who > is keen to win a prize pay you for your service on behalf of your clients > for structuring the deal and disbursing the money? > > Now let us have look at the sms premium short code. When entering in any > form of competition where a premium short code is used the Lottereis Act > is summarised in the attached WASPA advisory clearly states that if > participant pays in any form towards entering a competition, it is an > illegal lottery. Further, the entitiy pronoting the competition, for it > to qualify as a promotional competiton, musthave THEIR products as > prizes! Otherwise, as mentioned in the advisroy of WASPA to Foneworx, it > is an illegal lottery. In other words to be silly for a moment, only the > reserve bank may offer cash, because cash is their product. the minute yu > see a cash prize offered in any form of draw, whether by chabce of skill, > lit is deemed to be an illegal lottery. > > Please let me know where in the code of conduct you saw the R1 million > cash prize mentioned. I cannot see it. Ironically this would be contrary > to WASPA's own rules! > > Thanks > Hannes Senekal > > (Graham, i cannot activate the attachment for some reason. Willl you let > me have a fax number to send it to you.Your web page shows no phone or fax > number?) > > > > > > > ><=R>> > > > > >> Hi <REMOVED BY ADJUDICATOR> >> >> Please note that FoneWorx never runs a campaign for its own purposes. We >> are >> merely the technical back-end for companies who want to promote their own >> products. All clients and agencies are made aware of the WASPA Code of >> Conduct and accept the terms thereof. >> >> In the case of your query, the following information is relevant: >> >> Campaign is for Vanish, Dettol, Mr Min and Airwick >> All 4 products are from 1 product house and the design of the campaign >> was created by their agency. >> >> Start Date - 16th June 2009 >> End Date - 24th August 2009 >> >> We have checked the mechanics of the campaign ,and they ARE promoting >> their own products. Our understanding of the Lotteries Act is that the
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>> winning of cash prizes up to R1 million, is allowed. >> >> As far as the WASPA Code of Conduct is concerned, we have checked all >> promotional material and find them to be in full compliance. >> Nevertheless we are referring this campaign to WASPA for opinion. >> >> Should you have any further queries, please contact me on <REMOVED BY ADJUDICATOR> >> >> Regards >> >> Graham >> >> ----- =riginal Message ----- >> From: "Robyn Fortuin" <REMOVED BY ADJUDICATOR> >> To: "'Graham Groenewaldt'" <REMOVED BY ADJUDICATOR> >> Cc: "'Sarie Smith'" <REMOVED BY ADJUDICATOR> >> Sent: Friday, July 31, 2009 7:45 AM >> Subject: FW: [Fwd: =1million Competition] >> >> >>> Hi there Graham, >>> Please see email below >>> >>> regards >>> Robyn Fortuin | Support Help Desk >>> >>> Office: 011 293 0000 | Fax: 086 518 =357 | Email: [email protected]
>>> | >>> Web: www.foneworx.co.za >>>
>>>
>>> -----Original Message-----
>>> From: <REMOVED BY ADJUDICATOR> >>> Sent: 30 July 2009 08:40 PM >>> To: [email protected] >>> Subject: Re: [Fwd: R1million Competition]
>>>
>>>>> ---------------------------- Original Message
>>>>> ----------------------------
>>>> Hello Graham
>>>
>>> The short code is 34704 and the keywords are the barcodes from the
>>> products such as Airwick etc Than ks
>>>
<REMOVED BY ADJUDICATOR>>>>>
>>>>
>>>>
&=t;>>>
>>>>
>>>>
>>>&g=;
>>>>> Subject: R1million Competition
>>>>> =rom: <REMOVED BY ADJUDICATOR> >>>>> Date: Mon, July 13, 2009 =:00 pm >>>>> To: [email protected] >>>>>
>>> -------------------------------------------------------------------------= >>>>> >>>>> Hello, >>>>> >>>>> It seems that you are breaking a WASPA rule that states that no cash >>>>> prizes may be offered as nothing is being promoted. It may also >>>>> contravine the Lotteries Act. >>>>> >>>>> Before I pass on the information of the competition to WASPA and the >>>>> Lotteries Board for adjudication may I please have your comments. >>>>> >>>>> Thanks >>>>> <REMOVED BY ADJUDICATOR>>>>>