by Zena Henry
The Caribbean Court of Justice (CCJ) has upheld a ruling prohibiting the Guyana Telephone and Telegram Company (GTT) from denying internet access to one of its customers who made and received international calls using Voice over Internet Protocol (“VoIP”); technology provided by US Company Vonage.
The ruling could have possibly opened the flood gates for other GTT customers that may have used internet-related hardware or software to get around the company’s telephonic regulations and were restricted.
The ruling of the region’s highest court was made Monday July 20, 2015 in favour of local businessman James Samuel, who argued that GTT had no contractual right to deny him DSL service because of his use of Vonage. Vonage enables the user to make and receive international calls over the internet. However GTT argued that Samuel was aware that contractually, he could not use the apparatus on their service, especially since the company holds the exclusive licence to provide voice and data transmission service in Guyana and pointed to the Telecommunications Act1 (the Act) which prohibit the operation of an unlicensed telecommunications system.
In May, 2009, Samuel took GTT the High Court where he won the case. Trial Judge Justice Rishi Persaud said, GT&T did not give Samuels sufficient notice of the “restrictive terms” which were only brought to his attention after his DSL internet service had been disconnected. The Judge was not convinced that Samuels’ use of Vonage contravened the Act either, and noted that the Act was first passed as far back as 1990 and would not have covered recent advances in technology such as VoIP. He said too that GT&T’s licence was void in that it contravened the Civil Law Act2 which prohibits illegal monopolies.
In response, GTT approached the Court of Appeal and had the ruling of the High Court Judge reversed. The Court of Appeal claimed that Persaud did not consider the issue of implied terms and held that the restrictive clause contended for by GT&T ought to be implied into the contract between the parties in the interests of business efficacy.
While the Court of Appeal declined to express any opinion on Mr Samuels’ alleged breach of the Act, but found that Persaud’s findings on the validity of GT&T’s licence had no bearing on the private law claim for breach of contract.
However, in their findings the CCJ rejected the notion that a term was to be implied in the contract and that Samuels’ use of his Vonage VoIP equipment on GT&T’s internet DSL line was a breach of the Act. After addressing the basis of using ‘implied terms,’ the Court said that the Court of Appeal, neither GTT properly applied the principles on implied terms.
They said, “In this Court’s view, enforcement was a matter for the Director of Telecommunications as regulator and was not relevant to the issue of breach of the contract between GT&T and Samuels.”
While they declined to express any view on the validity of GT&T’s exclusive licence as well as the alleged infringement of section 146 of the Constitution, the Court upheld the order as to damages and costs made by Justice Persaud and ordered GT&T to pay Samuels appeal cost as well as theirs.
Attorney-at-law Davindra Kissoon represented Samuel, while Attorneys Miles Fitzpatrick, SC and Timothy M Jonas represented GTT.