The judicial review of the fine and sanctions levelled at German PRS quiz provider Ordanduu – the so called Affiliate marketing case – reached the high court on 18th of November and, after two days of lengthy evidence, rose to sit again in December. The Judges verdict is not expected now until the new year.
Telemedia-news was in attendance at the high court covering the case as it unfolded. Much of the hearing over the two days in November centred on setting the scene and telling the story. It was only latterly that we got to hear some of the legal arguments about the case and how it is being contested.
Below we have reproduced our live Tweets from the case so you get a flavour of what is being said.
The main thrust of the case is that Ordanduu argues that this was a one off, totally out of its control and discretion should have been shown to inform them so the service could just be shut down. Instead, it argues, PPP panicked, convened tribunal – of three people not familiar with PRS, affiliate marketing or any of the finer points of the issue – and then didn’t give them all the facts.
The argument for the review is that PPP can’t enact damaging emergency procedures like this.
PPP meanwhile argues that it did exactly what it is supposed to do: protect consumers. It acted quickly and decisively to shut the services off and punish the perpetrator to protect the consumer.
The case concluded on 19 November with much of the defence’s evidence still to be given – and we are still awaiting the claimants rebuttles. The case is scheduled to continue in early December.
18 November: the Claimant’s case
[AIME’s] Rory Maguire’s article [in telemedia-month 13 November 2013]on affiliate marketing sited as key evidence in the case and the judge directed to read it
PPP’s latest guidance [for 13th Code]now covers all the things that Ordanduu did at the time, argues claimant
PPP ignore e-commerce directive and so had no real power to impose sanctions, says claimant
Claimant argues that in PPP’s own guidance [PPP] can only act if there is ‘serious and grave risk of harm’: was this very high self-imposed threshold met?
Claimant argues that PPP can act against a company based in another country, but that it has to be fair and proportionate – and necessary. Claimant argues that it wasn’t in this case proportionate and lacked discretion
Tribunal that made the decision on emergency procedures was “an inferior one” – and that this case is classic grist to the judicial review mill
According to claimant tribunal members [two ex journalists and an ex lawyer]have no expertise in PRS or affiliate marketing and were not qualified to make the decision on emergency procedures
As a result of this lack of qualification they were unaware of the e-commerce directive so decision made was in error
This whole action is based on one rogue site and PPP have disclosed that they never found any other problems despite constant and wide monitoring. This was a one of exception.
Only one person fell victim to the site: PPP’s researcher. No one else clicked on it so no consumer harm occurred, says claimant
PPP found the offending site on 12 June and said nothing to claimant until 24 June. The site was left running for all that time. This could have caused great harm and should have been stopped.
In the end no one clicked on it at all
PPP has no email or paper trail of the case. The first documentation that appears is the emergency procedure.
PPP found that after 12 days it was pretty much a one off isolated incident yet didn’t tell the emergency procedures tribunal this. They also lumped in 164 complaints about people unwillingly subscribing to Ordanduu quizzes. These are totally unrelated and were subsequently dropped. Tribunal not told
19 November: PPP’s defence
PPP took action based consumer harm not the law, argues defence, which is what its statue dictates
Defence argues that where decision impacting public ‘heath’ a broad margin of discretion is to be given – and cites case law aplenty to back this up
Hence PPP can’t have acted disproportionately says the defence
PPP deemed the service to be very harmful so enacted emergency procedures as is its remit. PPP also contact [German regulator] DTMS but they never replied
The 164 complaints – although not to do with malware or ransomware – swayed PPP’s decision to enact emergency procedures
PPP now admits that the 164 complaints shouldn’t have been included
EC had knowledge of all issues in the case and backed it retrospectively claims defence. It acted swiftly then sought EC input backed by e-commerce directive
PPP digs out ‘evidence’ that the URL before arriving at the quiz site often comes from sites selling illegal wares
The case continues…