Big Brother vote probe is misdirected, says trade body

The Network for Online Commerce (NOC), which represents technology conduits that connect sellers of, for example, ringtones and chat lines, to customers of networks like Vodafone and Orange, says ICSTIS, the industry regulator, should be pursuing Channel 4. Instead, it is investigating connectivity providers Minick and iTouch.

"This is a bit like prosecuting the Highways Authority instead of the bank robbers for allowing robbers access to a bank," said NOC Chairman Roy Ellyatt. "Minick and iTouch had nothing whatsoever to do with the re-introduction of the contestants."

ICSTIS, the industry's regulator, disagrees. Talk of a fine is premature, said spokesman Rob Dwight. Minick and iTouch are the right targets and no doubt will recover any losses from their deals with Channel 4, he argued; and in any case, while complaints were made about the re-introduction of four contestants, only one – Nikki Grahame – returned to our screens for more than a short time. The remaining evictees have gone.

ICSTIS has now received almost 3,000 complaints from viewers who thought they had evicted Nikki, Mikey, Grace and Lea for good via text message and fixed-line premium-rate voting services. Each vote cost around 50 pence. They say they were misled.

NOC says the decision to return the housemates was made by Channel 4, not by Minick, which provided the mobile shortcode text vote option, or ITouch UK, which provided the 090 numbers for telephone voting.

"This isn't even a Premium Rate issue and ICSTIS shouldn’t be involved," said Ellyatt. "Channel 4 decided to re-introduce contestants long after the voting was completed and the losers were expelled."

Dwight points out that most of the complaints were redirected to ICSTIS from Ofcom. "They decided we were the right people to deal with the complaint," he said. He also accused NOC of jumping the gun. "We're not taking anyone to task," he said. "We've just launched a formal investigation. One outcome could be that there is no case to answer."

Other possible outcomes include a fine – and £250,000 is the maximum for a breach of the ICSTIS Code of Practice; or an order to refund voters; or a reprimand. If a third party proves to be culpable for breaches of the code, that will be taken into account and reported fully, said Dwight.

The investigation will last 12 weeks. "If a refund is ordered, all sanctions are against the service provider. They deal with practicalities of that. They will no doubt deal with Channel 4 and [Big Brother producer] Endemol. We're not interested in the minutiae of who pays and how."

The dispute between the trade body and the industry regulator transcends Nikki's return to the Big Brother house. For a long time, the trade body has wanted new rules to shift liability from service providers to content providers and ICSTIS has resisted the change.

ICSTIS argues that service providers must carry responsibility for their customers.

"You need an identifiable party," says Dwight. "Someone has to take responsibility and be accountable in the eyes of the law." He says content providers are sometimes difficult to identify. It is often a much smaller and less reputable company behind the content than Channel 4; and ICSTIS has to deal with the service providers. "If they can suggest a workable alternative, fair enough," he said. "But we've dealt with providers calling themselves 'Mickey Mouse' in the past with fictitious contact details."

Ellyatt dismissed this as being analogous to executing the parents of a murderer because the murderer himself is evasive. "It's a specious argument," he said.

Under the current ICSTIS Code of Practice, service providers are responsible for compliance with the Code "and for what goes out over their lines," explained Dwight. But he points out that service providers "are not taking in on the chin": they make a lot of money from customer content providers, and they have contracts in which they protect themselves against financial loss should they be fined because their customers breach the Code.

A revised Code of Practice is expected to be published in October this year, subject to approval by the European Commission. It provides that, where a third party accepts responsibility for code breaches, that third party will also be liable to accept responsibility for any penalty. Therefore service providers will escape liability in some cases. But nothing changes if the third party remains silent or refuses to accept responsibility.

That change does not go far enough for Ellyatt. "People in the middle, who provide the network, are facilitators," he says. Ellyatt considers Channel 4 the true service provider, for the purposes of liability. He describes Endemol as Channel 4's contractor. "It's Channel 4's programme," he says. "They put the numbers up [on screen]. They're responsible for the programme."

Ellyatt wants a new system of registration for content providers such that, when a company like Channel 4 wants telephony support, it has to provide its registration number. A central database should keep information about each registrant, including adjudications against them that facilitates the duty on service providers to perform due diligence on their customers.

Dwight argues that past adjudications are available at the ICSTIS website. Since June, it has been possible to search against a content provider's name to find details of previous adjudications. But service providers must do more, he says. "Due diligence goes further than checking whether someone has [breached the Code in its] history," he argues. "Barred company directors, discharged bankrupts, Companies House records and name and address details have to be checked."

Dwight does not see a need for a new database. "If anyone finds due diligence difficult we will meet [them] and talk through what due diligence is. Only a handful say it's difficult."

Again, the regulator and trade body disagree. "Service providers are getting a lot of money from services going out on their numbers," says Dwight. "They're taking a lot of revenue – so it's only logical that they accept some form of responsibility."