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Individuals and business entities (whether they be incorporated or not) increasingly rely on telecommunications technology to manage their affairs and conduct their business activities. Telecommunications service providers therefore perform an essential function by providing the means to effectively communicate with clients or business partners, as well as more generally facilitate the flow of information.

It is not inconceivable that a client of a telecommunications provider may therefore suffer loss of damage as a result of ineffective, defective or otherwise negligent ‘telco’ service provision. In situations like these, a telecommunications solicitor may need to be instructed to provide legal advice on the options available to remedy the situation. Telecommunications lawyers will best be in a position to advise a client who is contemplating suing a telecommunications service provider. Although seeking legal advice may seem costly, the costs associated with a failure to seek a remedy at law may be far greater in the long run.

As a general proposition, failure to discharge a duty under contract may constitute a breach of contract or ground an action in negligence. Of course, evidence of negligence may well ground a cause of action in breach of contract on its own, so the legal principles of both areas of law may be relevant in disputes with a ‘telco’. A telecommunication law firm will have the resources to service any cases that straddle both these areas of practice.

Some of the most common claims against a telecommunications company have revolved around bad reception, no reception and changes to fees and charges without notice. These matters may go to breach of contract or also relate to a broader claim in negligence. However, before any formal steps can be taken in a case, the claim must be appropriately researched and a strategy prepared by an experienced lawyer who has dealt with similar matters before. A complaint against a telecommunications company can of course be litigated, but a responsible solicitor will first attempt to seek a negotiated resolution of the matter before contemplating lodging any complaint at the Telecommunications Industry Ombudsman. Taking a matter to Court will always be an option, but before this is explored, other alternatives (which may be more efficient and economical) should first be considered.

In terms of negligence, matters that revolve around the failure to discharge professional obligations will involve a very high level of evidentiary investigations. This is because a case in professional negligence will need to establish firstly that a duty of care existed, and secondly that the duty of care was breached causing loss and damage to the aggrieved party. The professional standard known as the “duty of care” will need to be assessed according to industry standards and public expectations, and this process may be the most complicated aspect of preparing the case. Often, professional organisations will have drafted policies or codes which illustrate or describe in broad terms the principles involved in conduct that complies with the relevant professional standard. The Strategy Steering Committee of the Australian Mobile Telecommunications Association has drafted very broad policies in relation to the following:

Economics and Infrastructure:

  • Productivity benefits of mobile technology;
  • Convergence, services and devices;
  • Mobile network infrastructure; and
  • Radiofrequency spectrum.

Social Responsibility:

  • Community engagement, consumer education and awareness;
  • Privacy and mobile device security; and
  • Law enforcement, national security and emergency services. [1]

Other policies, which may address issues going to the conduct of telecommunication providers and the health and safety of mobile phone use, have also been drafted and submitted at the Association. These appear to constitute a growing body of literature which can be used to glean the relevant duty of care expected of a professional body operating in this industry. [2]

The Australian Telecommunications Association is another industry representative body, and it too has various published documents that directly address the standards of responsibility expected in the profession. The Association has published a Code of Conduct which makes direct reference to principles of ethics and professionalism:

The ATA Code of Conduct is underpinned by 3 foundations which relate to honesty, culture and professionalism.

2.1 Honesty

All offers / services must be stated clearly and honestly to ensure that the parties know exactly what they have committed to and what should be received in return. All claims, which are untrue, misleading, deceptive, fraudulent or unjustly disparaging of competitors, are deemed by the ATA to be unprofessional, dishonest and are considered to be in breach of this code.

2.2 Culture

Contact Centre professionals who abide by this code will endeavour to create an environment in their workplace which promotes enthusiasm, confidence and a desire to achieve key objectives by all employees.

2.3 Professionalism

In order to effectively promote both the organisation and the industry, it is expected that all activities will be conducted in a professional and ethical manner. [3]

Other matters that the Code considers include the operations of technology and monitoring, complaints management, telesales and telemarketing, and various legislative compliance issues. This is a very broad statement and asserts concepts in a manner that will require proper legal interpretation in the context of the facts of each case before a determination can be made on the likelihood of success for a claim in professional negligence against a telecommunications service provider.

It may not be unusual for a ‘teleco’ solicitor to recommend obtaining expert evidence in a particular case. This can then be used to bolster or support a claim that a certain professional standard may have been breached. Other expert information may also be obtained from other industry specific publications such as the TelSoc published Journal of Telecommunications and the Digital Economy. TelSoc “is a multidisciplinary society whose aim is to promote knowledge, understanding and excellence in telecommunications and its applications including the digital economy” [4] and it is through such organisations that the evidentiary threshold of negligence may be ascertained.

If you require guidance with a negligence claim against a telecommunications body, you may wish to contact our firm by telephone on (02) 9233 4048 or email us at info@navado.com.au and make an appointment to see one of our solicitors.

 

[1] “Policy” Australian Mobile Telecommunications Association website (undated) <www.amta.org.au> (accessed 26 November 2013).

[2] “Policy Submissions” and “Health and Safety” Ibid.

[3] Code of Conduct, A commitment to Professionalism, Best Practice and Ethical Behaviour (Australian Telecommunications Association, undated). This document can be obtained by accessing the Australian Telecommunications Association website located at <www.ata.asn.au> (accessed 26 November 2013).

[4] “Welcome” TelSoc website (undated) <telsoc.org> (accessed 26 November 2013).

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