Technical stuff

donutface

Note this is all hypothetical, while real life examples may be given, they are nothing but examples. For this example I am using o2. Its hard to generalise something like this, but my question relates to mashups of any 2 websites where it may break one of the terms of service,


If I was to host a website to send say free text messages through o2 to avoid all their unnecesary graphics and stuff, and it really catches on ie lets say €1000 worth of texts a month gets sent with it, can a company such as o2 take me straight to court or would they have to send me a takedown notice first?

After reading the terms for these websites, I came accross the following (for o2)

In addition, you shall:
...
not use any automated means, including without limitation, agents, robots, spiders, or scripts to access, monitor or copy any part of the Site except where this is expressly approved of by O2 in advance in writing.

My "program" would clearly break the above term. If it was hosted outside of Ireland, could they still sue me in an Irish court or would it have to be at the place the service is hosted in?

If I never personally agreed to these terms and services, but instead the person using it would require to supply their username/password, would I still be bound by these terms?

EDIT: If i was to say sell special phones or modify existing phones software to allow i to work with my gateway and send text messages cheaply through GPRS instead of conventional means. and have this compete directly with the SMS service provided with providers, can this increase damages?

haz

donutface wrote:

My "program" would clearly break the above term. If it was hosted outside of Ireland, could they still sue me in an Irish court or would it have to be at the place the service is hosted in?

I am not sure of the purpose of the question - the intent from the outset is to breach the terms of service for some advantage, at disadvantage to the service provider. Are you asking how likely the provider is to sue, or how to avoid legal action? If so, I think the answer is that the provider is technically savvy enough to block any automated abuse as soon as they become aware of it. Only repeated abuse after warnings, or that costs them significant technical effort to block or legal effort to warn, is likely to result in a prosecution. I don't think any of the providers have a reputation for playing legal hardball with bit-players, but I am sure they would if they perceived a threat.

donutface

After they would block my service, and I work my way around it, could they take me straight to court or would they have to send me a take-down notice first?

Victor

They could unilaterally obtain an injunction against you and or your ISP if they perceived an ongoing problem.

Of course, they just might send all your stuff to a null file.

Our man in Havana

We know that hosting a site inside Ireland is nothing short of foolhardy given that at the slightest sniff of trouble they (hosting company)will close you down. Find a country that is known for its lawless reputation and host your site there. They will be unlikely to obey any Irish court orders. Happy days.

haz

Bond-007 wrote:

We know that hosting a site inside Ireland is nothing short of foolhardy given that at the slightest sniff of trouble they (hosting company)will close you down.

My own experience was that Irish ISPs are extremely sensitive and interpret the Acceptable Use Policy (in my opinion) excessively cautiously. The specific instance was the term "causing annoyance" which they claimed meant they could delete pages or withdraw service on the basis of a single complaint from any person, without having to take any action to validate such a claim.

The person who told me this (in deleting my offending content) appeared to disagree with the policy's interpretation and recommended placing the offending content outside the jurisdiction and linking to it from the ISP - under current voluntary regulation placing the ISP in the mode of conduit to and not host of the annoyance. They subsequently attempted to delete the link, but accepted my argument that this would infringe my contract to a greater extent that any "annoyance" claimed by a non-customer.

No part of their action was based on the law, simply on aggressive threats that implied legal action might follow.

sh_o

Bond-007 wrote:

We know that hosting a site inside Ireland is nothing short of foolhardy given that at the slightest sniff of trouble they (hosting company)will close you down. Find a country that is known for its lawless reputation and host your site there. They will be unlikely to obey any Irish court orders. Happy days.

An properly worded order of the court may be targeted against the individual 'controlling' the site as opposed to just the web site/ provider etc as people are generally aware that you can move the site to another provider very quickly.

Our man in Havana

sh_o wrote:

An properly worded order of the court may be targeted against the individual 'controlling' the site as opposed to just the web site/ provider etc as people are generally aware that you can move the site to another provider very quickly.

It may be very difficult to identify the person in charge as many providers will for a fee register your site under an alias. Couple that with hosting in a lawless nation and the owner is untouchable.

dermot_sheehan

Prima facie it's a breach of contract. Provided they prove you had agreed to the contract, you are bound by it; and breached it no matter where in the world you breach it.

An interesting problem for them would be however proving damages in this example. Liquidated damages clauses (i.e. a term that says violate this contract and you agree to pay damages of €1,000) are to the best to my knowledge prohibited under common law, so they would have to prove actual damage (i.e. actual harm they suffered), performance damages (where they would be if the contract was performed), or reliance damages (they were harmed as they relied on you obeying the contract). It would be hard to see what harm they could show in the above example, I suppose they could estimate the amount of revenue they earn by on page advertising on their sms page, how much each page view is worth in advertising terms, and multiply by the number of messages sent without viewing the sms page.



They could also seek an order of specific performance from the circuit court ordering you to desist from breaching the contract. Violate this and you're in contempt.

It's unlikely they could get the DPP involved with a prosecution under section 9 of the fraud and theft offences act 2001, dishonest use of a computer http://www.irishstatutebook.ie/ZZA50Y2001S9.html due to the requirement to prove an intent to cause a loss to another or a gain for yourself.

Victor

gabhain7 wrote:

Liquidated damages clauses (i.e. a term that says violate this contract and you agree to pay damages of €1,000) are to the best to my knowledge prohibited under common law,

Liquidated damages clauses are perfectly legal, under two main tests (a) they must be reasonably calculated (you can't simple say "party X will pay party Y €1m per second if they are late in delivering the widgets", there must be reason to the calculation "The supplier shall keep the purchaser adequately stocked in widgets. The supplier will pay the purchaser €55 per hour of machine downtime caused by the late delivery the widgets" where €55/hour is the cost of having the machine and staff idle) and (b) they must not seek to punish or penalise a party (thats the courts job).

sh_o

Bond-007 wrote:

It may be very difficult to identify the person in charge as many providers will for a fee register your site under an alias. Couple that with hosting in a lawless nation and the owner is untouchable.

This very point arose in the rateyoursolicitor.com litigation recently. The plaintiff were able to use evidence obtained by a IT consultant using a web beacon planted in an email to obtain the IP Address and therefore via court order the location of the user using a web email address.

cast_iron

donutface wrote:

Note this is all hypothetical,

Hmmm, right.

donutface wrote:

can a company such as o2 take me straight to court or would they have to send me a takedown notice first?

If the offence is breaking the contract, I would think one could sue (if applicable) or bring an injunction if somebody broke it once (think murder)!

donutface wrote:

EDIT: If i was to say sell special phones or modify existing phones software to allow i to work with my gateway and send text messages cheaply through GPRS instead of conventional means. and have this compete directly with the SMS service provided with providers, can this increase damages?

By definition, you are trying to do the company out of even more money, so...

dermot_sheehan

Victor wrote:

Liquidated damages clauses are perfectly legal, under two main tests (a) they must be reasonably calculated (you can't simple say "party X will pay party Y €1m per second if they are late in delivering the widgets", there must be reason to the calculation "The supplier shall keep the purchaser adequately stocked in widgets. The supplier will pay the purchaser €55 per hour of machine downtime caused by the late delivery the widgets" where €55/hour is the cost of having the machine and staff idle) and (b) they must not seek to punish or penalise a party (thats the courts job).

My mistake, penalty clauses are not allowed, liquidated damages clauses are, provided not excessive, etc

Duffman

There are a few issues to bear in mind here.

First, any action O2 might take against you may well be for breach of contract as everyone else said but this necessarily requires that a contract actually exists. I think they might have a hard time proving this here. There must be an intention to enter into legal relations and there must be consideration (ie. you might be paying money to use O2's services). You're not acting in your capacity as an O2 customer. If someone else had given you the source of the webtext pages, for example, you would still be able to write your app - it merely allows other people to access the site. You could make a fairly strong case that no contract exists. User policies on sites like the one you quoted above often sound impressive but frequently lack any legal basis.

Second, as Victor correctly said, if O2 can make a good case for shutting you down they can do so without you having any idea beforehand. They might obtain a unilateral/ex parte injunction for this purpose. Of course you will still have the opportunity to defend yourself at trial and they'll even have to pay you damages because of this if they lose or if the case is thrown out.

Sorry for all the waffle but I'll just make a final point about the issue of hosting your site elsewhere. If you believe that you're in the wrong (or if a lawyer advises you that you are), it would be very unwise to assume that moving your hosting to another country will protect you. Any court order O2 gets will be binding on you, not the site. If you continue to manage a site in Afghanistan after you've been shut down by an injunction in Ireland, the site will still be online but you'll be in contempt of court and court will not be happy.

Also, you'd be surprised to learn how easy it is for them to haul you before the courts of the country in which the site is hosted.

Anyway, I'm not convinced that you're doing anything actionable here, but if you are then the defences you anticipated (ie. need for a notice and hosting elsewhere) won't work.

EDIT: Oh, and the stuff about selling phones and advertising your service - no way. They'll get you on intellectual property grounds.

This is all hypothetical legal stuff anyway. The reality is that O2 don't want the hassle and expense of suing you. If you're doing something that they don't want you to be doing they'll ask you to stop first.

sh_o

One other point - some operators in the UK are now offering voice over ip services where available.
If the product or service is good and in working order, you may wish to try and license it to O2 or another service provider to allow them to ship it with their own product.

Victor

Duffman wrote:

First, any action O2 might take against you may well be for breach of contract as everyone else said but this necessarily requires that a contract actually exists. I think they might have a hard time proving this here. There must be an intention to enter into legal relations and there must be consideration (ie. you might be paying money to use O2's services). You're not acting in your capacity as an O2 customer.

I imagine the site has its own usage terms and/or they can sue on Quantum Meruit grounds.