The telephone and mobile marketplace is a competitive one, both locally and internationally. Brands like Flow, bmobile and Digicel are constantly offering additional ‘value’ services to retain and attract new customers.
The cost of voice calls has fallen substantially over he past few years, thanks to the influx of competition in the telephone and mobile marketplace. But now, carriers also have to compete with services such as FaceTime, WhatsApp, and Viber, who offer high quality voice calls, over a reliable data network.
While telephone and mobile companies have traditionally been resistant to such developments, there is no doubt that these companies now have to change their marketing and pricing structures to cater to the increased demand for data services.
But is VOIP (voice over internet protocol) legal? Some internet service providers and mobile carriers have in the past blocked these services on their networks. In 2014, Digicel blocked Viber on its network through the Caribbean, a decision which was eventually reversed after consumer protest and intervention by regional regulators.
Among the arguments put forward by carriers and ISPs is a principle of contract law that the use of VOIP applications may constitute a breach of an implied term of service between the telecommunication companies and their customers.
The recent case of Samuels v Guyana Telephone and Telegraph Company [2015] CCJ 8 (AJ) considered this issue of an implied contract term. On 20th July, 2015, the Caribbean Court of Justice delivered a decision on the issue of whether Guyana Telephone and Telegraph Company (GT&T) breached its contract in disconnecting Mr Samuels’ internet service because of his use of Vonage (an internet phone service which uses VOIP technology).
The Court ruled that that Mr Samuels had not signed any written agreement with GT&T and he was given no notice of any restrictions on his internet usage.
On the question of whether there was an implied term of the contract between the parties, restricting the Claimant from using his internet service for VOIP services, the Court referred to the case of Attorney General of Belize v Belize Telecom Limited [2009] 1 WLR 1988 (P.C.):
The question of implication arises when the instrument does not expressly provide for what is to happen when some event occurs. The most usual inference in such a case is that nothing is to happen. If the parties had intended something to happen, the instrument would have said so. Otherwise, the express provisions of the instrument are to continue to operate undisturbed. If the event has caused loss to one or other of the parties, the loss lies where it falls.
GT&T therefore could not assume that such a term was implied in its contracts.
The Court refused to rule on the issue of whether Mr. Samuel’s use of VoIP constituted an unlicensed telecommunication system under the Guyana Telecommunications Act.
The Court did note however that commercial DSL internet access providers in some Caribbean countries raise no objection to the use of Vonage VoIP equipment on their DSL lines:
In fact, in the course of argument, counsel for GT&T accepted that in some countries of the region the use of Vonage equipment on internet access DSL lines is permitted. We have also taken judicial notice of the European Union regulatory framework for electronic communication which came into force in 2003… This framework is constructed on the understanding that VoIP is frequently used in different contexts, i.e. on a personal computer, on a private network or as a public service. The nature of the service being offered is the determining factor as to whether the use of VoIP falls within the regulatory framework or not.
Telecommunications regulations would need to be considered in each jurisdiction to clarify any grey areas in this regard.
GT&T was ordered to pay damages and costs as awarded by the trial judge as well as the costs of the appeal before the CCJ.
No attempt has been made to block WhatsApp or FaceTime voice calls by carriers in Trinidad and Tobago.
Consumers should read in detail the contract between themselves and mobile or fixed line services, to ensure that there is no restriction on this type of activity.
