GT&T takes customer to court over Skype

Jun 14, 2015 News

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…matter reaches CCJ
The Caribbean Court of Justice heard arguments on June 2, last, in the matter of James Samuels v. GT&T. Samuels filed an appeal that included arguments concerning the legality of GT&T’s monopoly as well as concerning whether a private citizen can use Voice Over Internet Protocol (“VoIP”) in Guyana without permission from GT&T or without a telecommunications licence.
Samuels applied for and was provided with DSL internet services by GT&T in 2006. After DSL service was installed on Samuels’s computer he subscribed to Vonage VoIP service. Vonage VoIP enables a subscriber to send and receive voice communication electronically over the internet by the use of a computer.
Samuels wrote GT&T informing it of his intention to utilize VoIP on the DSL service provided. GT&T replied advising that under the terms of his contract with them, he was prohibited from utilizing the DSL service for international telephony traffic bypass and also pointed him to the fact that he had no licence to engage in telecommunications services, VoIP being telecommunications, the use of which requiring a licence.
Samuels, according to court documents disregarded the caution proffered by the defendant and proceeded to utilize the DSL service provided by GT&T for VOIP activities. Upon the discovery of such activities GT&T blocked Samuels’s internet access, thereby disturbing the DSL service which was provided to his residence.
GT&T contended that the disruption of the service was justified since the plaintiff was unlawfully operating an unlicensed telecommunication service in contravention of the provisions of the “Telecommunications Act of 1990” as well as in breach of his contract with GT&T.
Samuels moved to the courts seeking an injunction against GT&T, restraining it or its servant, agents from interfering with his use of the DSL service for the VOIP service as an accessory to the internet service available to users in Guyana and abroad, arguing that GT&T did not own the internet and was interfering which is freedom to communicate.
Further, Samuels asked the court for a declaration that there was a breach of contract executed between him and the defendant (GT&T) for the provision of DSL service for his premises. Samuels sought damages in excess of $1,000,000 for the breach of contract whereby he said he suffered loss and damage because of the disruption.
The main thrust of GT&T’s case is that the plaintiff was in breach of the DSL contract he entered with them. Additionally, GT&T also defended its actions of blocking Mr. Samuels’ use of VoIP by stating that the use of VoIP consisted of telecommunications pursuant to the Telecommunications Act, and therefore required a licence for its use.
Counsel for GT&T, Mr. Miles Fitzpatrick, S.C. and Mr. Rex McKay, S.C., argued that since Mr. Samuels did not have a licence for the use of VoIP, Mr. Samuels was conducting an illegal activity and GT&T was therefore justified in disrupting his use of VoIP, especially since GT&T had a monopoly on telecommunications and VoIP in Guyana given its exclusive licence.However, Samuels contended that he merely signed an application form for the provision of the DSL service and was not provided with a written contract setting out the terms and conditions of such service at the time he made the application. Mr. Samuels also argued that the use of VoIP did not constitute telecommunications and therefore did not require a licence, and in any event, GT&T’s licence was invalid since it was illegal to have a monopoly in Guyana according to the Civil Law Act.
In a ruling by the trial Court in favour of Mr. Samuels, Justice Rishi Persaud stated that GT&T failed to prove the terms of its contract restricting Mr. Samuels use of VoIP, ruled that VoIP did not constitute telecommunications but the transmission of data, and opined that GT&T’s monopoly was illegal. He awarded Mr. Samuels $850,000 plus costs.
GT&T promptly appealed the decision.  In a dramatic turn of events, the Court of Appeal, in decisions rendered by Chief Justice Ian Chang, Justice Yonette Cummings and Justice James Bovell-Drakes, overturned the trial Court’s decision, stating that while the Court of Appeal would not disturb the trial court’s findings of fact on the issue of GT&T’s failure to prove the express terms of its contract with Mr. Samuels, it was clear that there was an implied term in the parties’ contract restricting Mr. Samuels use of VoIP, especially since Mr. Samuels wrote GT&T informing it that he was going to use the DSL service for VoIP.
It was clear that GT&T would never allow the use of VoIP since it constituted telephony bypass, the court ruled.
The Court of Appeal also stated that the issue of GT&T’s monopoly was irrelevant to the matters in dispute that there was insufficient evidence on the record to justify a finding that VoIP did not constitute telecommunications.
Mr. Samuels then appealed to the Caribbean Court of Justice. He argued that the Court of Appeal’s decision was incorrect as a matter of law since not only did its decision constitute an impermissible interference with the trial judge’s findings of fact, but it also implied a term which was never contained in GT&T’s pleadings or evidence in the Court below.
He argued that the Court of Appeal did so by impermissibly considering Mr. Samuels’ post contractual conduct as an aid to imply a term in the parties’ contract and misinterpreting the Law of Contract generally.
Samuels also argued that there was no evidence of an implied term and no evidence that GT&T would be harmed by his use of VoIP. The Court Appeal in any event incorrectly analyzed GT&T’s position only without an analysis of the consequence of such an implied term to both parties.
Samuels also argued that GT&T’s restriction of his use of VoIP interfered with his constitutional right of freedom of expression. Even if there was a contract between the parties restricting his use of VoIP, which he denied existed, that term would be illegal since it was mandated by an illegal monopoly.
Samuels argued that VoIP did not constitute telecommunications and therefore did not require a licence for its use. GT&T argued that Mr. Samuels has admitted to the existence of a contractual term restricting his use of VoIP and that the Court of Appeal’s decision was correct
The CCJ has reserved its decision. It is set to rule on these issues in the upcoming months. Mr. Samuels is represented by Mr. Devindra Kissoon of London House Chambers. GT&T is represented by Mr. Miles Fitzpatrick S.C. and Mr. Timothy Jonas of De Caires, Fitzpatrick and Karran.

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