Vodacom’s decision to slow down the speed at which BlackBerry users access the Internet if they use more than a 100MB of data a month could be in breach of the “spirit” of the Consumer Protection Act (CPA), analysts say.

The mobile phone company said on Monday “the 5% of the base who are not using the service for what it was intended will have their connection speed reduced from 3G to 2G levels”.

Any BlackBerry user who downloads more than 100MB/month will get remaining data at a slower speed even if the consumer has paid for a 3G phone. BlackBerry enterprise users are not affected.

Vodacom has defended its decision, saying the move is intended to ensure the “vast majority of BlackBerry users can access the Internet and BlackBerry services more quickly and are not affected by those who abuse the service”.

But plain language attorney Candice Burt believes there is scope to challenge this new business practice under the CPA. “The CPA provides that a supplier of services must not engage in misleading conduct,” she says. “This applies to adverts as well as to contracts. It also places an onus on a supplier to correct any false expectations that consumers may have. We must look at how a consumer would understand the terms ‘unlimited browsing’ and ‘3G’,” she adds.

After the announcement, almost 700 Vodacom customers threatened “war” on the company’s Facebook page. Subscribers lambasted the mobile company’s decision and threatened to take their business to other mobile operators.

“Maybe I should report this to the National Consumer Commission, they’re the only one who can bring them to book,” writes Tumelo Mokhele on the Facebook page.

Vodacom spokesman Richard Boorman acknowledges that there is “huge anger” at the company, but says BlackBerry users have misunderstood the move, which is aimed at stopping people downloading excessive amounts of data. Boorman says the company was “finding a way to make sure 95% weren’t disadvantaged by small minority”.

He says reducing download speeds to 2G would not make accessing the websites on a BlackBerry “dramatically slower” for most users, but it would stop users from downloading movies and streaming video when the free BlackBerry service was designed for normal Web browsing. “By doing this the network will become faster,” he adds.

Sarina Govindsamy, an attorney at Gavin Gow Inc, says the decision is not in the “spirit and ethos of the CPA”.

“A company may not amend the terms and conditions of a contract after it has been agreed. That would constitute a breach of contract,” she says.

Boorman denies the company is in breach of contract. “We’re not changing the terms and conditions of contracts,” he says.

However, according to Burt, for Vodacom to invoke existing terms and conditions, the consumer’s attention will have to be drawn expressly to the relevant clause in the contract that spoke about misuse of the BlackBerry Internet Service, and the consumer will have to expressly acknowledge the contents of the clause.

“To decide if this change by Vodacom contravenes the CPA, we must look at the subscriber agreement,” she says. “The plain language requirement of the CPA also means that the contract must be written in a way that the ‘ordinary consumer with minimal experience of the product or service’ can understand and use the information without undue effort.”

Boorman says Vodacom’s BlackBerry subscribers are not guaranteed a specific download speed when signing up, but rather promised free Internet service — to which they still had access, following the decision to limit speeds. “We did this to make sure the vast majority people get what they want.”

IT analyst and World Wide Worx MD Arthur Goldstuck criticises Vodacom’s decision to slow down Internet usage after 100MB of data has been used. He says it shows Vodacom does “not understand how the SA market is using the Internet on mobile phones”.

But Boorman insists 100MB is a lot of data. “A hundred megabytes on a BlackBerry is equal to about 400MB on a normal computer because BlackBerry phones compress the size of websites, regardless of whether they were mobile websites or not,” he says.

Vodacom may have implemented the speed limit because its technical infrastructure is taking strain. “It may be that Vodacom is trying to contain the high usage because the data network is creaking at the seams,” says Goldstuck.

On Vodacom’s Facebook page, Jose Antonio De Abreu has voiced similar concerns: “This is just a way for Vodacom to hide the fact that they are running out of network capacity. They are trying to hide it by throttling users to try and cope better.”

However, Boorman denies this. “There is no problem with the network,” he says, insisting the decision was simply meant to benefit the average user. “There is no Internet cap. Customers will continue to have unlimited Internet service.” — Katharine Child, Mail & Guardian