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I bought a Palm Pre from O2 as soon as they arrived in the UK. The sales rep told me that I'd be able to unlock it for free or for a nominal fee.
When it came to unlocking, O2 refused.
I took them to court - and eventually they unlocked it and paid me some cash for my wasted time.
This is a long article - so here is a quick summary of the timeline:
For clarity, I'm not a lawyer. I have no legal training. Don't rely on anything I write here as legal advice.
If you follow my steps and end up getting sued and losing your house due to something about the law that I don't understand - then I take no responsibility whatsoever!
My argument consists of two parts.
1) O2 (through their sales rep) told me that I would be able to unlock my phone. Unfortunately I can't prove that conversation.
However I can prove that their sales reps routinely tell customers that they can unlock any phone!
2) If O2 are going to insist on never unlocking a phone, then that is the kind of 'significant detriment' that they should communicate clearly to customers at the point of purchase.
The recent OFT report uses a quote from Lord Bingham to illustrate this principal
'The requirement of good faith in this context is one of fair and open dealing. Openness requires that terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer. Fair dealing requires that a supplier should not, whether deliberately or unconsciously, take advantage of the consumer's necessity, indigence, lack of experience, unfamiliarity with the subject matter of the contract, weak bargaining position or any other factor listed'
Lord Bingham in Director General of Fair Trading v First National Bank
[2001] UKHL52 paragraph 17
Let's have a look at what O2 do actually do
So - all of this seemed unreasonable to me and I started a fight.
Dear Sir/Madam,
I am writing to request that you arrange for my Palm Pre to be unlocked.
I purchased the Pre from 02 in October 2009. At the time, I asked the agent in your store about unlocking. He assured me that I would be able to unlock the phone for free or a nominal charge.
This was confirmed by section 5.9 of my contract which says
5.9: Where a handset is restricted to use on the Network we reserve the right to apply a charge for releasing or unlocking the handset. Details of the charge are available by calling Customer Services.
For the record, I have called customer services (call recording available on request) who have told me that unlocking is free for all pay monthly customers subject to the contract being kept up.
Unfortunately this is where I have hit a snag. Customer services tell me that of all the phones on the O2 network that were for sale in 2009, there is only one that they will not unlock. This is the Palm Pre.
This was not mentioned to me at the time of signing the contract and is clearly a massive detriment. Where I would like to pass the phone on to my wife (I now use a different phone), I am unable to - and it becomes an expensive paperweight.
It seems to me that this is the kind of additional condition which should be not just listed in the terms - but also flagged with a 'giant red flashing sign'. Neither of these has happened.
So, I am writing to request that you make good on the word of your customer representative, and your contract and unlock my Palm Pre.
Should you be unable to unlock the pre for technical reasons, I would be willing to accept a replacement Pre which is unlocked, or payment of £456.
I have calculated the £456 as the approximate premium that I have paid over the length of the contract for the pre. This is based on the initial £96 cost, plus the £20/month premium over your mid-range £15/month sim free charge.
I look forward to your swift response. If this matter is not resolved by the 1st December, I will be making a claim for £456 through the wonderful Moneyclaim online.
Yours sincerely,
Unsurprisingly, O2 didn't back down. They responded with this:
I love the fact that they try to conflate having an exclusive phone with selling a phone that will never be unlocked. Of course I knew that the phone was exclusive in the sense that I could only buy it from them - but that's a different beast altogether.
And then they almost seem to blame Palm with the 'due to it being exclusive...' and the 'decision made by Palm'.
So, the battle continues.
I filed a claim with Moneyclaim Online. This is an online portal to the UK small claims court. It costs something like £35 to file the claim. One great thing about the small claims court is that under normal circumstances if it is an individual versus a company, then the claim will be heard in the local court of the individual. This makes it a lot more practical.
The initial form at Moneyclaim Online allows you a paragraph or so to outline what the case is about. The court send a letter to the defendant, and they choose whether to pay up or fight.
O2 chose to fight. I forget the exact details, but I think they filed a notice with the court just before the deadline ran out saying that they would be defending the claim.
On the 21st December, a chap called Andy called me and offered to settle.
He said that he could unlock the phone.
I told him that after wasting this much of my time, I was after a bit more than that. We agreed £100 (plus court costs).
This was all fine until he mentioned the 'standard confidentiality clause'
I don't like businesses that try to hide surprises in their small print. I certainly didn't want to be part of what I saw as an attempt to get me to collude with O2's unfair business practice.
I'm a member of the Palm Pre community (I even make a little cash selling Palm Pre apps) and I wasn't going to take an 'I'm alright Jack' attitude.
So, the deal fell through and we're back to fighting it out through the courts.
This is the point where O2 get to submit their defence. It's somewhat long and boring. You can read it as a pdf.
I have included the main section here:
Again, they conflate exclusive with 'will not unlock'
They argue about my valuation of the phone. It's tough to price a phone - but the difference between a sim-only contract and a contract with the phone doesn't seem unreasonable.
And they state that 'The defendant advertises that the mobile phone will not be unlocked'. This is critical - and they provide the evidence in exhibit 2.
so - there it is.
I'd say 'advertise' was something of a stretch. Douglas Adams springs to mind here:
Mr. Prosser said, "You were quite entitled to make any suggestions or protests at the appropriate time, you know."
"Appropriate time?" hooted Arthur. "Appropriate time? The first I knew about it was when a workman arrived at my home yesterday. I asked him if he'd come to clean the windows and he said no, he'd come to demolish the house. He didn't tell me straight away of course. Oh no. First he wiped a couple of windows and charged me a fiver. Then he told me."
"But Mr. Dent, the plans have been available in the local planning office for the last nine months."
"Oh yes, well, as soon as I heard I went straight round to see them, yesterday afternoon. You hadn't exactly gone out of your way to call attention to them, had you? I mean, like actually telling anybody or anything."
"But the plans were on display..."
"On display? I eventually had to go down to the cellar to find them."
"That's the display department."
"With a flashlight."
"Ah, well, the lights had probably gone."
"So had the stairs."
"But look, you found the notice, didn't you?"
"Yes," said Arthur, "yes I did. It was on display on the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying 'Beware of the Leopard.'"
I never got to find out when this page was actually published. My guess is that it wasn't online on the day of the Palm Pre launch. I'd have found out if we had ever gone to court.
So, now I get to send more detailed arguments to the court. This letter is pretty long. I'd have loved to have gone to court and been able to see what they provided for the evidence I requested.
A couple of snippets:
O2 try to conflate exclusivity with 'not unlockable'. In their letter to me, they wrote that I should have known the phone would not be unlocked because their magazine for that month mentioned that it was 'exclusive'.
My understanding of the word exclusive is the one that O2 give in point 4 of their introduction - meaning simply that it is not marketed or supplied by any other network in the UK. This meant that when I wanted to buy the Palm Pre from them, I also had to purchase 18 months of airtime.
If O2 wish to state that 'Exclusive' means that a phone will never be unlocked, then this is a significant re-definition of the term which should be explained in large clear terms at the point of sale.
O2 seem to rely on Exhibit 2 to indicate that they advertise that the mobile phone will not be unlocked because it is exclusive (section 4 b,c,d)
Exhibit 2 may have been on their site when I purchased the device (I ask O2 to confirm this), but a single page hidden in their huge site which is not linked from the product description, and which does not show up in reasonable search terms seems a highly unfair way to redefine the meaning of 'exclusive'.
And my request for evidence
A: O2 rely on Exhibit 2 (defeince section 4 c,d) to show that I should have known that they would not unlock the Palm Pre.
I would like them to document:
1. When that web page was published2. How they expected me to find the page
3. Whether the page was linked from the Palm Pre online description or my contract.
B: O2 imply that I should have know that their exclusivity meant that they would never unlock the phone. I would like them to document:
1. Where this policy was clearly explained
2. How I was supposed to find this policy
3. Which other phones were exclusive for some period of 2009
4. Which of these exclusive phones are now 'unlockable'. (e.g. the iPhone was an O2
exclusive)5. How I was supposed to tell the difference.
C: I would like O2 to provide a copy of the online product page for the Palm Pre from the time of launch - or state that there was no link from the product page to any condition that the Pre would never be unlocked, or any indication that such a condition would be enforced. (I have a copy of the current product page which has no such links).
We can only guess what O2 could have said.
Following the OFT's release of a report on consumer contracts, I thought it would be worth dropping an email to O2's legal eagles
Hi Sophie,
thought I'd copy you in on the latest OFT report. Loads of good stuff which seems directly related to our case.
http://www.oft.gov.uk/shared_oft/market-studies/consumercontracts/oft1312.pdf
e.g. one of the opening quotes
'The requirement of good faith in this context is one of fair and open
dealing. Openness requires that terms should be expressed fully, clearly
and legibly, containing no concealed pitfalls or traps. Appropriate
prominence should be given to terms which might operate
disadvantageously to the customer. Fair dealing requires that a supplier
should not, whether deliberately or unconsciously, take advantage of the
consumer's necessity, indigence, lack of experience, unfamiliarity with
the subject matter of the contract, weak bargaining position or any
other factor listed'
Lord Bingham in Director General of Fair Trading v First National Bank
[2001] UKHL52 paragraph 17I don't think anyone will argue that trying to lock me in to a contract with O2 until the end of time (if I want to use the expensive phone you sold me) is anything other than disadvantageous.
As you know, my position is that this lock-in is not in the terms, and is explicitly contrary to what your sales agent told me when I purchased (and what your current sales agents still say in my recorded conversation).
The bar here seems to be even higher than you proving that the term exists though - you have to prove that you gave it appropriate prominence.
Let me know if you want to chat.
cheers,
Who knows whether this tipped the balance, whether O2 never intended to go to court, or whether the new legal trainee Josh was just clearing out old cases.
Either way, I got this email on the 7th March
Hi Rob
By way of introduction, I have now taken on Sophie's position in the legal team here at O2 and will be dealing with your claim. I would be grateful if you could send all future correspondence to me, rather than to Sophie.
Please find attached a settlement letter in relation to your claim, which sets out an offer of settlement from O2. The offer is in the terms that I believe you previously agreed with Andy Lang and does not include our usual confidentiality provisions, as you requested.
I will be sending hard copies of the attached letter and a notice of discontinuance in the post and, if you are happy to settle your claim on the basis set out in the letter, I would be grateful if you could sign and return both of these in the stamped addressed envelope provided so that we may forward them on to the court.
Many thanks
Josh
The settlement letter essentially promised £100, court costs and the unlocking of the Pre.
We haggled a bit and agreed on £150 plus the court fees. Josh also re-wrote the letter to take out any mention of confidentiality before I signed it. And we're done.
On the 18th March, I got this email from Andy Lang (the chap who initially offered to settle with the confidentiality clause)
Dear Mr Jonson
As per the agreement, the unlocking code for your Palm Pre is: 86981102. I’ve also requested a payment of £185 is sent to you.
Below are the unlocking instructions as provided by Palm:
Unlock Process:
1. Insert the foreign SIM Card into phone.
2. Turn on the phone - can take a couple minutes to load.
3. You will get the language option to set the language
4. Confirm language settings
5. After setting up the language, the unlock code prompt appears:
as Enter Network Unlock Code (subtitled as Contact your carrier for your unlock code)
6. If successful, you will need to accept the terms and conditions for Palm webOs Services.
You can also try this alternate method of unlock the device, if the device has been used before:
1. Load a non-carrier SIM
2. Turn the device on.
3. Press white button # and then white button * this opens the dial pad (this takes a few seconds to appear)
4. Remove any characters on the screen
5. Enter the unlock code and press dial (Opens another screen “Enter Network Unlock Code”)
6. Enter the unlock code and press Done Press and hold the power button until the Turn Off screen appears press Turn Off - when the phone turns off press and hold the power button until the phone turns On.
Please make sure that you are using a different carrier’s SIM than the device. Also, make sure that when you see the unlock screen that it does say “as Enter Network Unlock Code (subtitled as Contact your carrier for your unlock code)” if you see enter an unblock code, it means that an incorrect unlock code has been tried for more than 10 times. In the case of an unblock device, we need to get you a replacement device, and you need to send the phone back to Sunnyvale.
When a customer successfully unlocks the phone initially, the device should stay unlocked on any SIM card that is used.
Switching to a new SIM Card after unlocking the device
Power down device
Remove battery
Insert SIM Card and Insert battery
Turn on.
The device will show the carrier on the top left.
Who knows what will happen next.
If you own a Palm Pre, then I'd say it was worth trying to get it unlocked.
Hopefully O2 will change their policies and go with either unlocking phones - or stating clearly up-front that a phone is forever network locked.
I'm not holding my breath.