Johannesburg - Did you know that if you agree to take out a contract over the phone, the company is not legally obliged to give you a copy of that call recording, or even let you listen to it, at their premises?
It’s a shocking omission in the Consumer Protection Act (CPA), given that in cases where a contract is entered into over the phone, the call recording is the only record of what was disclosed about the deal, and what you agreed to.
And it stands to reason that if you enter into a contract with a company, whether you do so in the form of a written contract, or over the phone, both parties are entitled to a copy, or at least access to it.
The CPA does compel companies to provide customers with a free copy of a written contract, or free access to it, but in the case of contracts entered into over the phone, it compels companies only to “keep a record of transactions”.
Not a word about making that record available to the customer. So if the customer later disputes what was disclosed or promised in that telesales call, technically, they can’t get access to proof in the form of that recording.
It leaves the company holding all the cards, and I’ve investigated cases where customers’ requests to access their recordings have been responded to in a shameful manner by the companies concerned.
Happily, National Consumer Commissioner Ebrahim Mohamed has a consumer-friendly view of this apparent contradiction in the CPA.
“Even though the CPA is silent on making available to consumers copies of recorded consumer agreements, it is the view of the commission that the rule (Section 50) relating to written contracts must equally apply to contracts entered into telephonically,” he said.
“It is the view of the NCC that any other interpretation would amount to an absurdity and not (be) in keeping with the spirit of the CPA,” Mohamed said.
“The commission is considering approaching the Minister (of Trade and Industry, Rob Davies) to clarify the matter through the promulgation of regulations.”
And that can’t happen soon enough. Here’s why…
Avanthi Jeewan of Durban’s MTN contract expired last year, but, being happy with her cellphone, she decided to continue on a month-to-month basis, paying a subscription of R121 a month.
That is until she got a call from an MTN telesales agent in February, who told her she could continue to enjoy all the benefits of that contract, but pay just R69 a month.
It sounded like a good deal to Jeewan, so she agreed.
It’s worth bearing in mind that Jeewan did not seek out this deal – she was cold-called and offered it by MTN.
The next bill after that telesales call was an unpleasant surprise for Jeewan. It was not less, but more – R195.
When she queried this, she was told that it included a once-off fee for “downgrading” and a charge for itemised billing.
“The MTN agent did not tell me that I was ‘downgrading’, for starters,” Jeewan says, “much less about any fee associated with it.
“And itemised billing was included in the R69-a-month contract I was on before.”
Her objections fell on deaf ears, she says. In March’s bill, the downgrading fee was gone, but the R90 still included a fee for itemised billing.
When she complained to MTN’s customer service division, she was told that they’d remove that fee – and stop the itemised billing. Which was missing the point, of course.
Jeewan repeatedly implored the consultants, via e-mail, to listen to the call recording to prove that what she was saying was correct – the telesales agent had promised her the same benefits for less.
All her mentions of the call recording were ignored.
“I just wanted someone to hear what I was saying,” she says. “I wanted them to listen to those tapes, which I knew would prove my point.”
Finally, last month, an MTN customer services woman told Jeewan that she could listen to the call recording. But there was a catch.
In an e-mail, a customer services consultant told her: “Please be advise (sic) that if you need to listen to the voice recording, you need to come to our head office to listen the call (sic), we will assist you.
“We trust that you find the above in order.”
Funnily enough, Jeewan didn’t find that response in order at all.
“I live in Durban. I didn’t need to travel to their head office to take out that contract, but now that I am being held bound to the terms of the contract which were not explained to me, I have to travel to their head office to listen to my mandate in order to prove it?”
After four months of battling with MTN on her own, that e-mail was the last straw for Jeewan, and she contacted Consumer Watch for help.
Consumer Watch contacted MTN about Jeewan’s case, and shortly afterwards she got a call from an MTN person at head office, to say they’d listened to the call recording. He conceded she had been right all along, apologised profusely and offered to refund all the money they shouldn’t have debited from her. She was given the choice of reverting to her old contract, taking out another, or porting to another network. She chose the first option.
“I’d been imploring them for months to listen to that recording, but they ignored me, their customer,” she said. “Now you come along, and immediately they take action.”
Interestingly, Jeewan has still not been offered the opportunity of listening to that recording.
“I was so excited that they actually acknowledged the fact that they were wrong, that I forgot to ask them for the recording,” she said.
Responding, Eddie Moyce, MTN SA’s chief customer experience officer, said the network took full responsibility for the call centre agent’s “miscommunication” to Jeewan – she had failed to tell her about the extra itemised billing and new contract fees, meaning she was billed for things she didn’t opt for, he said.
“MTN has put corrective measures in place to address the situation.”
As for the main issue – MTN’s prolonged obstruction of Jeewan’s access to that call recording – Moyce said the agent who dealt with her request to listen to the recording had been “negligent”.
“In an event of a dispute,” he said, “MTN does retrieve the call recording and invites the aggrieved customer to listen to the conversation in the presence of a designated MTN employee should it be possible and convenient for the customer.
“If it’s not, MTN sends a transcript of the call recording to a service centre that is nearest to the customer, for listening purposes.”
My understanding of the word transcript is a written record, which one would read rather than listen to, but either way, it’s a form of access to the recording.
Why not just e-mail the customer a voice file of the recording, on request, so that he or she can listen to it at their leisure, as MTN can?
No can do, says MTN.
“The recording cannot be sent to a customer unless he or she gets a court interdict requesting MTN to hand over the call recording.”
Let’s hope the minister sees fit to amend the CPA to give consumers equal access to their own call recordings – without having to jump through expensive hoops.
If I had my way, the law would require companies to e-mail call recordings to consumers who entered into contracts over the phone, as a matter of course, within 48 hours.
That would give them the opportunity to cancel, should they have second thoughts about the deal, having had time to digest its terms, conditions and financial implications.
The CPA’s direct marketing provisions – telesales is a form of direct marketing – allows consumers to cancel such deals within five business days, in writing. And you don’t have to provide a reason. You just get to change your mind.
As for those consumers who don’t have access to e-mail, the companies could be required to post or fax them transcripts of their call recordings.
In the absence of such consumer protection, my advice would be to either steer clear of telesales deals altogether, or to level the playing field by making your own recording – some smartphones have this capability.
How other networks respond
How do the other networks respond to requests for their call recordings to settle disputes?
Last January Consumer Watch took up the case of Brad Needham, who “upgraded” his Cell C contract over the phone, and later objected to paying R83 a month as a “handset fee”, saying this was not disclosed by the telesales agent during the sales call.
When Cell C insisted that he had, he asked for a copy of the call recording.
“The operator told me they don’t have to send me a copy, it’s their’s and they don’t send it to a customer unless a court orders them to,” he told Consumer Watch.
One agent said he could listen to the recording over the phone. “But to me, that wasn’t good enough. I wanted my own copy, so I could listen to the call at my leisure, and replay the vital bits,” he said. “Just as they can.”
When Needham posted a comment on consumer complaints website HelloPeter, Cell C responded by saying that its “legal team” were of the view that he was liable for the handset fee, but he was offered R200 as a “goodwill gesture”.
But their story changed when Consumer Watch got involved.
It conceded that Needham had not been told about the handset fee, and he was refunded all the unauthorised deductions.
As for Cell C’s policy regarding subscribers’ requests for call recordings, here’s what Consumer Watch was told: “Should a customer request to listen to a particular call recording, they are asked to come into a Cell C store or office in order to do so, but we do not send call recordings to the customer. Mr Needham was informed of this and was told to visit his nearest store in order to listen to the recording.”
Needham insisted he was only told he could listen to the call in question over the phone, but was not invited to do so at a store.
Vodacom spokesman Richard Boorman said voice recordings of all customer interactions were “made available at our closest store”.
I had asked him: “Does Vodacom send the subscriber a copy of the recording via e-mail, so that both parties to the contract are on an even footing, with regard to access to that mandate, as is the case with written contracts?”
I did not get a direct answer, so I sought clarification which did not arrive in time for my deadline.