Pretoria - An online company which has been the victim of “click fraud” – where an advertisement is repeatedly clicked to increase the costs to the advertiser – for the second time failed in its bid to force Vodacom and other cellphone providers to disclose information to it regarding the fraudsters.
Giftrap Trading (applicant), which sells corporate gifts and clothing online, managed to obtain the local Internet protocol addresses of devices from which it believed the click fraud had emanated.
It earlier launched an unsuccessful application in the Gauteng High Court, Pretoria, in which it wanted disclosure of the information from the cellphone service providers so that it could identify the wrongdoers and take legal action against them.
After the high court turned down its application, the company turned to the Supreme Court of Appeal in a bid to overturn the high court’s findings.
Service providers are required by law to obtain and keep specified information in respect of their customers.
The appeal concerned the rights of access to the customer information held by the service providers, such as Vodacom.
In turning down the appeal, the Supreme Court confirmed that the disclosure of customer information obtained and stored by internet and cellular phone service providers, under sections of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica), is only permitted if it is required as evidence in a court of law, and not for purposes of identifying wrongdoers.
Giftwrap Trading (Pty) Ltd advertises its products on online platforms provided by Google. As per normal practice, it has to pay for the advertisements posted. These advertising fees are calculated with reference to the number of visits to a particular advertisement.
For some years, however, Giftwrap has been the victim of what is referred to as “click fraud”.
This takes place when an advertisement on the internet is repeatedly visited (clicked upon) with the intention of increasing the costs of the advertisement and/or draining the sales revenue of the advertiser.
Revenue is lost because the repeated click fraud visits limit genuine access to the advertisement.
Giftwrap employed various experts and strategies in attempts to put an end to the click fraud it experienced. These efforts were unsuccessful until a breakthrough in March 2019.
With the assistance of an expert, Giftwrap obtained a large number of local Internet protocol (IP) addresses of devices from which, so Giftwrap believed, the click fraud on it had emanated.
It said the information at its disposal also identified the service provider that each of these IP addresses used to gain access to the internet.
Giftwrap was therefore able to compile a list of Internet protocol addresses suspected of having perpetrated click fraud, for each service provider. The lists of Internet protocol addresses that pertained to the service networks (the respondents) formed the basis of the litigation.
In 2019 it turned to the high court to obtain disclosure of the customer information in respect of each of the listed IP addresses, so that they could take matters further.
Vodacom did not dispute that Giftwrap could use the information if it was disclosed to it. Vodacom said that were the decision solely up to it, it would have provided the information to Giftwrap. In its view, however, the provisions of Rica precluded the disclosure that Giftwrap sought, hence the opposition to the application.
The high court earlier confirmed that Rica does not permit disclosure of customer information for the purpose of identifying wrongdoers. It accordingly dismissed the application.
In its appeal before the SupremeCourt, Giftwrap argued it was entitled to disclosure of the customer information of the listed IP addresses.
However, Judge Chris van der Merwe, who wrote the judgment delivered this week, said the relevant sections of Rica clearly stated that this information can only be divulged by service providers if it is required to be used as evidence in a case pending in a court of law (criminal or relating to the Prevention of Organised Crime Act).
Information required to investigate whether legal proceedings could be instituted, falls outside Rica’s ambit.
“Rica prohibits the interception of the contents of communications and the disclosure of related and other specified information, subject to prescribed exceptions. The purpose of S 42(1) is to prohibit the disclosure of private information, save in limited cases where it is justified in the public interest,” the judge said.
He, however, said an entity or person in the position of Giftwrap is not without remedy. Rica does not preclude the preservation of customer information if it were to be used in criminal proceedings as evidence.
Pretoria News