Tuesday, 28 February 2017

Never say "yes"

You have seen the news story I am sure, on Telegraph (don't they check their sources?).

Police warning over scam callers who ask 'Can you hear me?'

Well, "I can hear you..."... But, which police force or authorities sent this warning?

What is odd is this is promoted on twitter by someone selling call blocking services. @CPRCallBlocker. They were on BBC Radio 5, and oddly their spokesman actually said "yes" during the interview, so allowing millions of people to record him saying "yes" to frame him in a contract! Or, so he would have you believe.

My own lawyer actually made a "call recording" (here) to prove the point, and I should hold him to it as I would love the @RevK twitter handle. That recording is entirely constructed from (many) call recordings of calls with him in the past. Nice job editing it...

The point here is that contracts are formed when parties agree to form a contract, and occasionally, when there is a dispute, there may need to be evidence of the contract and the terms. That evidence can be in testimony, evidence in call recording, in signed documents - even in scanned signed documents so no actual paper. Many ways. Evidence in the way the parties behaved and acted even.

It is simple to get the signature of a director of almost any company from companies house, but paste that in to a document and try and sue for breach of contract and you will need more evidence than that. Analysis of documents and call recordings can find the fakes, and even simple things like I have, on file, all of the calls from which that was made and could find them as a counter to any claim to show the recording was "constructed". At the end of the day a judge would decide.

What makes this even harder is scaling the scam - if you scam one person and do it well you may win - the judge may decide you have the "evidence" on your side, but it gets more and more suspicious as more people say "I never agreed to that", "that call never happened", and the scam falls down.

It also falls down on scale with one scam - make a call recording agreeing £1,000,000 for that twitter handle and that will be suspect and justify a lot of scrutiny and forensic analysis of the "recording".

At the end of the day a scam like this simply does not pan out, and the whole story pretty much has to be a hoax - maybe to sell call blocking services, who knows?

Please, Telegraph, fact check your stories. After all, you do not want to fall in to selling "fake news".

P.S. Neil has confirmed my side of that "recording" was all from a single call recording I posted on my blog some time ago, so anyone could have constructed that just the same. Well done Neil.

6 comments:

  1. There's a lot of truth in this.

    Clearly, evidence is often used to adduce the existence of a contract, or the terms.

    That evidence may be not what it seems. It might be entirely false (as with the entirely concocted "recording", or the re-use of a signature gleaned from Companies House), or there might be an argument as to which version of terms and conditions was in force at the relevant time.

    I struggle with the idea that, in isolation, a "yes" would be sufficient to act as evidence of the existence of a contract, or as a record of consent for processing personal data under the GDPR, and so on. Context is important. And the call blocker discussion seems to be able the use of just that one word, not an edit of a broader conversation.

    But there is not much stopping a party advancing a claim that the evidence supports their side of the story, and leaving it to the other party to counter it. Might a judge be persuaded by the mere fact that there is a purported call recording?

    Countering it could be difficult, as proving that a call didn't happen — or providing any other negative — is tricky. If there was a claim that the call was made from or to a particular number but did not appear on verifiable CDRs, that might go some way to defeating the claim. Similarly, if the allegation was that the call was made on a particular date and time, but there was evidence that the alleged caller could not have made the call, that might help.

    I wonder how a small claims court would approach the issue of allegedly fabricated evidence. Would a party get permission to instruct an expert? Or would the judge attempt to rule on the issue? Some judges may do better with that than others — but I can see that an unrepresented technically-savvy litigant may struggle to make headway on a forensics-based argument which is really the preserve of an expert against a party simply insisting that the recording is what it pretends to be. As you say, push it to the extreme, and ask for a lot of money, and there should be much greater scrutiny, but for a more moderate claim, I do wonder...

    But, still, I should be *very* surprised if a simple "yes" was sufficient, which seems to be the assertion behind the alleged scam here.

    Oh — and if it is an old bloke with an Australian accent asking you saying that he can't hear you, check if his name is Lenny...

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  2. The original version of this scam seemed to relate to reverse-charge calls, where a recorded "yes" to "do you accept the charges?" might be enough to get away with the scam. Presumably if they do this on a non-trivial scale someone will spot the pattern and figure out what's going on though...

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  3. It happened in the US because they don't have working consumer protection laws.

    For example, suppose A&A decides to use their Direct Debit to take £4500 of my money instead of £45. Here I just call my bank, and the £4500 transfer is unwound, as are any interest charges or fees or anything like that. If A&A want their £4500 or even £45 they now need to persuade me to pay some other way, or go to court. They can't just tell the bank "We want the money, screw your customer" that's not how it works.

    In the US the equivalent system has no protection. A&A takes £4500, I call my bank "Sorry" they say "This was a transaction you agreed to, I can't just reverse it, you'll need to talk to the company that billed you". And everybody involved knows that for me to actually get anywhere I'll have to spend a lot of money on lawyers, with no guarantee of success, so probably I'll just drop it. Scams like this are widespread in US society.

    Of course our host has moaned before about how consumer protection means sometimes small businesses get screwed, but I'd rather we sometimes screwed small businesses than allowing them to screw consumers.

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    Replies
    1. That does seem quite amazing if what you say is true about US direct debits. Even so - the article was about the scam coming here, it basically would not work as a scam here.

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  4. CPR (Call Prevention Registry) is listed on the official TPS (Telephone Preference Service) website as a company not to do business with.

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