BB users seek recourse

Embittered BlackBerry users have taken to social network forums, such as Twitter and Facebook, to vent their frustration about the BlackBerry Internet Services failure, with many feeling they have been cheated.

“How are you going to make this up to us, RIM?” has been a recurring question posted on social media platforms.

In response, RIM has said it is now turning its attention to the issue of customer compensation. “This is something we plan to come back to these customers on very, very soon and it is a priority. Our priority right up until this moment was making sure the system is up and running and operating globally.”

In the interim, the SA's National Consumer Commission (NCC) said on Wednesday that BlackBerry users could seek recourse from their service providers in terms of the Consumer Protection Act (CPA).

According to NCC commissioner Mamodupi Mohlala, sections 55, 56 and 61 of the CPA give affected consumers a sturdy leg to stand on with regard to seeking reimbursement from their cellphone companies.

The sections outline consumers' rights to safe, good quality goods, implied warranty of quality and liability for damage caused by goods, respectively.

Mohlala said that, in terms of section 61, any individual part of the supply chain could be held accountable for loss suffered by customers, regardless of whether the fault originated across international borders.

“As long as the product is sold and purchased in SA, consumers have the right to compensation. Section 61 of the CPA serves to ensure that the burden of identifying the party liable for loss or damage is not carried by the customer.”

She says consumers who purchased their BlackBerry in the last six months have the right to return the device and insist on either another brand to the same value, or a refund. “Section 55 says that consumers have the right to a good quality product that is capable of being used for its intended purpose and this is not what they got in this instance.”

Mohlala adds that those who purchased their BlackBerry more than six months ago still have recourse in terms of the recent downtime.

However, Albert Aukema, of the competition practice at Cliffe Dekker Hofmeyr, says the provision, for the return of affected handsets that were supplied after the CPA came into force, is debatable.

“Although the scope of these sections have yet to be interpreted by the courts, it is unlikely that such a challenge would be in line with the provisions of the CPA.”

Aukema says the interruption appears to have been unrelated to defects in the handsets supplied to consumers as part of the service offering.

Nicholas Hall, an attorney with Michalsons Attorneys, says the suggestion that BlackBerry users could take their phones back for exchange or refund is “a bit of a stretch”.

He says the notion of consumers relying on the said acts to either return mobile devices for a full refund or new phone or hold RIM liable for financial loss suffered due to the blackout is incorrect.

“[These sections] only apply to goods, and to my mind there is nothing wrong with the BlackBerry mobile devices. They all are functional. It is the network, the 'service' that these devices connect to that is faulty. As such, to my mind at least any reliance on these sections for a complaint cannot be sustained.”

He says in terms of section 54 of the CPA, consumers have the right to demand quality services, which includes the performance of services in a manner and quality that persons are generally entitled to expect.

“Under this section, I think BlackBerry owners have grounds to get refunded due to the blackout. To my mind, consumers will have to ask for the refund from the cellphone providers as ultimately they are the “suppliers” of the service to the consumer. This applies even though the cellphone companies are not responsible for the downtime, RIM is. Ultimately the cellphone suppliers could try and regain these losses from RIM.”

While legal beagles debate the validity and potential of reimbursement and consumer claims, a number of cellphone operators have stepped up to say they would be compensating their customers as a 'token of goodwill'.

Virgin Mobile SA was the first to announce it would reimburse the BlackBerry contingent of its customer base. The company's chief strategy and marketing officer Jonathan Newman says Virgin Mobile subscribers will receive full BIS fee compensation for the days that the operation was interrupted. The cellphone operator became an approved reseller of BlackBerry services just a couple of months ago.

Cell C, which has close to 150 000 BlackBerry users on its network, will compensate its customers by giving them R10 off the cost of their BIS for the month of October, as well as providing them with 10 free SMSes for the time they could not use BlackBerry Messenger. “Customers will receive more information about the compensation via SMS next week,” says Cell C's media liaison officer, Vinnie Santu.

SAs biggest cellphone operator, Vodacom, jumped on the bandwagon this morning, announcing the company will give all BlackBerry customers affected by the disruption 20 free Vodacom to Vodacom minutes for use from Monday to Friday next week. “We will also be giving affected customers 20 free SMSes for the inconvenience,” says Richard Boorman, Vodacom's executive head of media relations.

Vodacom has more than a million BlackBerry customers, says Boorman, which accounts for approximately 5% of its total customer base in SA.

“We will not be able to do this each time a supplier has a problem, but we do believe this is an exception.”

Vodacom customers can call 082 111 for any queries on the matter.

MTN SA, which has a subscriber base of 19.8 million, 2.6 million of which are smartphone users, said it could not disclose the number of BlackBerry users on its network. “Suffice it to say that we have a considerable number of customers.” MTN says it will pass a R10 credit to affected users.

8ta, via Twitter, confirmed it will give its BlackBerry users a R10 refund, as well as 28 free SMSes and 28 free minutes in compensation.