Wikileaks Payment Company Plans To Sue Visa & Mastercard Over Cutoff
from the priceless dept
With Visa and Mastercard refusing to take payments for Wikileaks, the company that was providing payment services to Wikileaks, Datacell, has announced plans to sue both credit card companies to try to get them to go back to accepting payments. There’s no indication of exactly what law Datacell thinks these firms broke. Unless there are more details, this does sound like a bunch of shouting in the wind. As much as I disagree with Visa and MasterCards’ decisions to cut off Wikileaks, they are private companies and can refuse service to anyone, no matter how petty it makes them look.
Filed Under: payments, wikileaks
Companies: datacell, mastercard, visa, wikileaks
Comments on “Wikileaks Payment Company Plans To Sue Visa & Mastercard Over Cutoff”
“they are private companies and can refuse service to anyone”
No they can’t. I have no love for wikileaks and I hope there is a special place in hell for all of them but a company can not arbitrarily refuse service to someone. If there is no legitimate business reason to refuse service then the cannot do so.
Now maybe they can make the case that being associated with them would hurt their business, but that isn’t what the article says.
Re: Re:
“If there is no legitimate business reason to refuse service then the cannot do so.”
Erm, yes that can as long as it’s not breaking any contract or discrimination law. They usually don’t for PR and other reasons, but they can’t be forced to give service unless some law or contract says they must.
Re: Refusal
> If there is no legitimate business reason to
> refuse service then the cannot do so.
Actually, that’s completely false. A business is free to refuse service to anyone it chooses, so long as it’s not based on race, gender, religion or ethnic origin. Any other reason, the business is free to say thanks but no thanks, go somewhere else.
In this case, the suit is most likely over breach of contract. Datacell is probably contesting the termination based on the contract they had with Visa and MasterCard.
Re: Re: Refusal
“Actually, that’s completely false”
Actually, it’s completely true. Especially if there is a pre-existing business relationship like there was in this one. The courts have been VERY clear on it.
Now, a breach of contract is certainly possible. But again the original article does not mention anything like that.
Re: Re: Re: Refusal
Jim, Can you provide links to educate myself on this? I was under the impression that any business can refuse service for whatever reason. Hence many businesses posting the “No shirt, No shoes, No service” sign on the doors. I can be a long existing customer at a place and show up once without a shirt and be asked to leave. Basically customers have to play by thier rules. I don’t know what the contracts say though.
Re: Re: Re: Refusal
> The courts have been VERY clear on it.
Then it shouldn’t be hard for you to cite a case that mandates businesses have to take all customers whether they like it or not.
Re: Re: Re:2 Refusal
Then it shouldn’t be hard for you to cite a case that mandates businesses have to take all customers whether they like it or not.
Why should he? He didn’t claim that they did.
Re: Re: Re:3 Refusal
“If there is no legitimate business reason to refuse service then the cannot do so.”
Yes he did.
Re: Re: Re:4 Refusal
The comment BTR was replying to said “…if there is a pre-existing business relationship like there was in this one”, not “businesses have to take all customers”. Big difference.
So, no, he didn’t.
Re: Re: Re:4 Refusal
The comment BTR was replying to said “…if there is a pre-existing business relationship like there was in this one”, not “businesses have to take all customers”. Big difference.
So, no, he didn’t.
Re: Re: Refusal
Actually, that’s completely false. A business is free to refuse service to anyone it chooses, so long as it’s not based on race, gender, religion or ethnic origin.
But that’s not what Mike said. Mike said *anyone*. BIG difference. If Visa and MasterCard were to decide to refuse to, say, allow blacks or women (or some other “special” group) to have credit cards then the feds would be all over them because that wouldn’t be “fair”. But Assange, being a white male, is totally fair game. And, by extension, so is WikiLeaks.
Re: Re:
Sure they can and there are several companies that are doing it; Paypal refuses to process transactions for firearm-related purchases, as does CitiBank.
While I don’t agree with it, a private company can choose how they run their business, so long as they don’t step on Federally protected classes such as gender, race, yada yada.
Payment Processors have massive contracts. Its most likely a broken contract. The processor should have statements of when and how a contract can be broken or ended and VISA / MC did not follow it.
Call this one a contract dispute and nothing else.
Breach of contract?
If Datacell had a contract, the credit card companies would have to prove that Datacell breached it. It can’t be terminated without cause (unless that is also stipulated in the contract).
Contract
> There’s no indication of exactly what law Datacell
> thinks these firms broke.
They’re not claiming Visa and MasterCard broke the law. They’re almost certainly suing over a breach of contract, not a violation of law.
Defensive announcement?
The cynic in me asks “Is it possible that they’ve announced this to protect themselves against a possible Anonymous DDOS?”
The optimist in me asks “Is it possible that they’ve announced this because they think that what Mastercard and Visa did was wrong?”
Re: Defensive announcement?
“The optimist in me asks “Is it possible that they’ve announced this because they think that what Mastercard and Visa did was wrong?””
Free advertising, They are “standing up to the Man”, Internet cred. 🙂
while their at it, they should sue the gov for interference with business relations (ie for the gov getting these companies to breach their contracts). that would be fun.
Mr. Fink
Andreas Fink, the CEO of Datacell wrote on their website -NEWS 8th December 2010 12:30 CET: “We strongly believe a world class company such as Visa should not get involved by politics and just simply do their business where they are good at. Transferring money. They have no problem transferring money for other businesses such as gambling sites, pornography services and the like so why a donation to a Website which is holding up for human rights should be morally any worse than that is outside of my understanding.”
I like this guy. Though he doesn’t get into the specific legal premise of the suit he does mention that Visa is “hurting Wikileaks and DataCell ehf in high figures” and he mentions “massive financial losses” to Wikileaks. He may have something there, especially if one could rely on a free speech as a fundamental right under international law argument. (which he also mentions…)
After all, in the US Corporations now have free speech rights in the form of unlimited donations for political advertising…..
Seems somewhat relevant.
There's a whole world outside of the USA!
Not all companies operate in the US and US law doesn’t apply outside the US.
Datacell is operating in Switserland and Iceland, see their About us page: “DataCell is a privately owned Icelandic company under Swiss / Icelandic control.”
In other words US Federal law can go kiss their ass. Though I don’t know the specific laws in these two countries, there’s a fair chance that arbitrary termination of services as done by VISA, Mastercard and maybe even Paypal may be illegal.
Re: There's a whole world outside of the USA!
Understood. But international human rights law may apply. The Universal Declaration of Human rights Article 19 reads:
“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
So arguably, Visa and MCs refusal make cardholder’s transactions to an organization promoting free speech such as Wikileaks, is a violation of world people’s universal right to freedom of expression. Who knew VIsa and MC were violating my universal human rights? Bastards.
Its interesting. Visa and MC are international players and Wikileaks is arguably and international organization. And the US is involved as they put pressure on Visa and MC to shut of the flow of $ to Wikileaks. Very very interesting.
First of all, http://www.datacell.com/news.php
Datacell is located in Iceland and has a second office in Switserland. Datacell is a provider who hosts a donation site for Wikileaks. They have been doing this for 2 months now. Visa asked them to close this donation site and they refused. So Visa had their account suspended, not closed, for one week, possibly longer. Visa (and probably Master card do this to make sure they themselves won’t get in legal problems when they allow payments to support the Wikileaks site. It would make sense if Wikileaks was a terrorist organisation and some Politicians are pretending that Wikileaks is worse than Al-Qaeda. Thus the confusion. From that viewpoint, it does make some sense.
But Datacell also offers regular hosting options to other clients and I don’t think Visa or Mastercard payments are blocked for payments related to that too. (If it is, then this company has some major financial problems!) As far as I know, only payments for their donation system are blocked until it’s clear that Visa and Mastercard won’t get any legal problems with helping those financial transactions.
This suspension will last one week. So my suggestion is to just wait this long, see how things develop. For all we know, Visa might be willing to open the account again plus add a donation of their own if it’s proven that Wikileaks isn’t doing anything illegal.
Re: Re:
This suspension will last one week. So my suggestion is to just wait this long, see how things develop. For all we know, Visa might be willing to open the account again plus add a donation of their own if it’s proven that Wikileaks isn’t doing anything illegal.
You can’t prove such a negative. Thus, it will be impossible to prove “that Wikileaks isn’t doing anything illegal”. That’s why in civilized legal systems people are assumed innocent until proven guilty. And, no, it does not “make some sense” to switch that around.
Re: Re: Re:
It makes sense from the perspective of Visa and Mastercard, because they hear rumours that Wikileaks is doing something criminal. They don’t want to be involved in criminal actions so they suspend the account for further investigations. It would hurt their business if they would support a criminal organisation.
No proof doesn’t mean Wikileaks is innocent. Courts must assume a person is innocent until proven otherwise but businesses, banks and regular persons are just free to assume the opposite. Everyone has the right to think and say Wikilieaks, the FBI, the NY Times etc. are all criminal organisations. That’s what free speech is about.
Thus, Visa and Mastercard can just assume Wikileaks is a criminal organisation and thus refuse any further business with them. If that’s their opinion then you have to respect that, or put an end to free speech!
Re: Re: Re: Re:
It makes sense from the perspective of Visa and Mastercard, because they hear rumours that Wikileaks is doing something criminal.
…
Everyone has the right to think and say Wikilieaks, the FBI, the NY Times etc. are all criminal organisations.
That’s exactly the point. There are “rumors” that other organizations (FBI, NY Times, etc.)are doing illegal things too, but Visa and MasterCard aren’t cutting them off, now are they? Therefore, that excuse rings false, as in a lie. No, Visa and MasterCard are clearly involved in using the banking system to wipe out speech that they don’t like.
That’s what free speech is about.
And free speech is also what Visa and MasterCard are trying to stop.
Thus, Visa and Mastercard can just assume Wikileaks is a criminal organisation and thus refuse any further business with them.
I’ve heard people say the same thing about African-Americans: They’re all criminals! By your reasoning, it should be perfectly alright for the credit card companies to refuse cards to them. What a load.
If that’s their opinion then you have to respect that, or put an end to free speech!
Oh, so that only apples to banks, not Wikileaks, huh? (And no, that’s not an opinion that I “respect”, despite your insistence that I must.)
You can try to apologize for them all you want, but facts are facts, whether you like them or not.
Of course they can refuse service....
There is no law or system in place forcing a business to work with everyone. Whoever said that a business has no right to deny service is a fool.
Where I work, we refuse service to those caught stealing. We send a certified letter to the police department and them, outlining why we are not allowing them on the premises.
This will be interesting to see, i hope MC and Visa breached their contract.
Re: Of course they can refuse service....
“Whoever said that a business has no right to deny service is a fool.”
I’d love to see the electricity and water utilities (many of which are private companies) deny service for anything else than not paying for the service.
I’m willing to bet that it would be illegal in most civilized countries.
Banking services are a public utility as you can’t reasonable run a business without such services and you need it to pay taxes, so there’s most certainly a lot of applicable regulations (at least in civilized countries).
Re: Re: Of course they can refuse service....
banking services are NOT public utilities.
Re: Re: Re: Of course they can refuse service....
> banking services are NOT public utilities.
And even if they were, MasterCard and Visa are credit card companies, not banks.
Re: Re: Of course they can refuse service....
> I’d love to see the electricity and water
> utilities (many of which are private companies)
> deny service for anything else than not paying
> for the service.
Those are regulated untilities. An entirely different set of legal restrictions and principles apply.
MasterCard and Visa are not regulated utilities.
Re: Re: Re: Of course they can refuse service....
Those are regulated untilities. An entirely different set of legal restrictions and principles apply.
I guess you never heard of “deregulation”, huh?
Re: Re: Re: Of course they can refuse service....
MasterCard and Visa are not regulated utilities.
They are indeed regulated. In fact, it is government regulation which has so reduced competition in the financial network business that companies like Visa and MasterCard can operate with such arrogance. But Visa and MasterCard know this. They know their success is the result of government protection and they aren’t about to bite the hand that feeds them. If the government tells them to jump, the only thing they’ll ask is “how high?”
Re: Re: Of course they can refuse service....
> Banking services are a public utility
Not legally they aren’t.
Re: Re: Of course they can refuse service....
I’d love to see the electricity and water utilities (many of which are private companies) deny service for anything else than not paying for the service.
I’m willing to bet that it would be illegal in most civilized countries.
Maybe in socialist countries, but under the principles of capitalism that should be just fine.
Re: Of course they can refuse service....
Whoever said that a business has no right to deny service is a fool.
So, your straw-man is a fool? Imagine that!
–The cynic in me asks “Is it possible that they’ve announced this to protect themselves against a possible Anonymous DDOS?”–
They already have a list of target candidates. Datacell is not likely to make that list ever. Bigger fish to fry. Besides, DDoS attacks are more a statement than real damage. Who in hell visits mastercard.com? It’s not like they did anything to the processing transaction system. It’s more like a sit-in in front of MC headquarters.
Datacell doesn’t really have a reason to fear anything. If they understand IT. And I’m sure they do.
I read this yesterday on CNET...
According to the article at http://news.cnet.com/8301-1009_3-20025038-83.html?tag=contentMain;contentBody;1n
“DataCell said it had been losing revenue since Visa and MasterCard decided to stop processing WikiLeaks’ donations.”
From what I read I took it as their main source of income comes from the donations Wikileaks gets, though it could be that they are band from handling ANY transactions at all.
Can Visa and MasterCard really be considered “private companies” anymore?
Who here has a debit/ATM card that doesn’t have a Visa or MasterCard logo on it? Doing business with these companies is increasingly becoming unavoidable. Besides cash, is it even possible for some people to donate right now? Visa is also in the check processing business, if I send a check will Wikileaks actually be able to process it?
I don’t think any business involved in finance should ever have a right to decide how I use my money. Visa doesn’t have to give me a credit card … but once they do, the money is mine to spend as I see fit.
Re: Only One Problem
Techinically your right, Your Debit/ATM card is your money…
But these are Credit Card processors, They process Credit Cards (Or Debit Cards run as Credit). When doing so Visa is LOANING you money (again with debit they are loaning it to you for anywhere from 1 minute to 3-4 days depending on how fast your bank processes stuff). As far as check writing I imagine they have to process those. But remember Credit Cards are using VISA/MC’s money. An interesting exception of prepaid Cards, this is your money which you should be able to do what you want with. However they only work inside the country you got them from, So unless your in Iceland/Switzerland its a mute point.
Re: Re: Only One Problem
> So unless your in Iceland/Switzerland its a mute point.
It’s *moot* point. Not mute.
Sorry, pet peeve of mine.
Re: Re: Re: Only One Problem
I did a whole week of moot court on Tax law once and damn I wished I could mute it 😉
Re: Re: Only One Problem
When doing so Visa is LOANING you money (again with debit they are loaning it to you for anywhere from 1 minute to 3-4 days depending on how fast your bank processes stuff).
So, when I give my money to the person behind the counter at McDonald’s a minute before I get my food, you’re saying that I’m making a commercial loan to McDonald’s? Uh oh, I guess the feds are gonna come get me now for breaking banking laws. Either that, or you’re full of it.
Re: Re:
> Can Visa and MasterCard really be considered
> “private companies” anymore?
Not only can they, they are. Just because your product is successful doesn’t mean your company stops being yours.
Microsoft has Windows on 90% of computers in the world. It’s still a private company.
Re: Re: Re:
Not only can they, they are. Just because your product is successful doesn’t mean your company stops being yours.
Like my local utility companies are private companies.
Re: Re: Re: Re:
> Like my local utility companies are private companies.
Actually, it’s nothing like that at all, either functionally or legally.
Visa and Mastercard are Public Companies
I’m not sure if this is nitpicking or not, but Visa and Mastercard are public companies, at least in the US and their stock is traded on the New York Stock Exchange.
Not that I think the companies should be forced to service certain customers, though.
Re: Visa and Mastercard are Public Companies
In the broadest sense, the term private corporation refers to any business not owned by the state. This usage is often found in former Communist countries to differentiate from former state-owned enterprises, but it may be used anywhere when contrasting to a state-owned company.
This is the context that the term “Private Company” was used, It was not inferring that MasterCard and Visa were privately held companies, rather that they are not state run.
Re: Visa and Mastercard are Public Companies
I’m not sure if this is nitpicking or not, but Visa and Mastercard are public companies, at least in the US and their stock is traded on the New York Stock Exchange.
Ah, language confusion. If you’re talking about it in non-financial terms, any company that is not owned by the government is considered a “private company.”
On the financial markets, “public companies” and “private companies” mean something different — but we weren’t talking about the financial markets, but in the sense of whether or not they’re gov’t owned.
Re: Re: Visa and Mastercard are Public Companies
Acknowledged! Thanks for the clarification
Re: Visa and Mastercard are Public Companies
> I’m not sure if this is nitpicking or not, but
> Visa and Mastercard are public companies, at
> least in the US and their stock is traded on
> the New York Stock Exchange.
It’s not nitpicking, it’s just irrelevant.
The word “public” has different meanings depending on the context. A public company in the context of the stock exchange merely means ownership shares are available for the public to purchase.
It’s still a private company, however, unless the government owns 51% or more of the shares. Then it becomes a “public” company in the other sense of the word in that it’s owned and controlled by the taxpayers.
Re: Re: Visa and Mastercard are Public Companies
“Public” or more accurately publicliy traded companies have a legal responsibility to act in the best interest of its shareholders. So, it is not irrelevant.
A privately held company can act in any manner it wishes, within the law, but a publicly held company has to explain, at the very least to its shareholders, why it needlessly exposed itself to a lawsuit by refusing to process transactions that, as of now, are legal.
Lawsuit
There are several possible theories on which litigation can be based, most of which would arise either from a breach of contract action, from some alleged violation of public policy, from an alleged violation of electronic financial transaction regulations, or from a n alleged wrongful/tortious interference with prospective economic advantage (which is derived from public policy). There might also be the potential for someone to raise anti-trust issues, but that’s a bit far afield. I will be very interested to see the complaint if it ever sees light of day…
Options?
My question is, for those of us disgusted by VISA/MCs actions, are there any viable options that we can switch to? Paypal is just as guilty, Discover and AMEX cards are certainly less convenient, particularly if you do not live in the US. So what can we do? We are just trapped? Should this be considered a monopoly situation?
Visa/MC are violating their customers rights.
Since I am in the US, I can only speak from that perspective. These companies are violating the unenumerated rights of the 9th Amendment and the enumerated rights of the First Amendment.
In refusing to process these transactions, Visa and Mastercard are, on behalf of the government, interfering with their customers 9th Amendment right to freedom to associate with others and facilitating the repression of free speech (their customers) and free press (Wikileaks).
As far as contract law, I believe that by issuing an account to a customer, they are contractually obliged to financially fullfil their customers side of a transaction. Failure to do so would make them liable, at the very least of tortous interference with a contract. The only out for them is if they are knowing acting in the commission of a criminal activity (i.e. online gambling sites, which are illegal in the US). Since no charges have been filed, Visa/MC are in for a world of hurt.
Re: Visa/MC are violating their customers rights.
> These companies are violating the unenumerated
> rights of the 9th Amendment and the enumerated
> rights of the First Amendment.
The Bill of Rights does not apply to a private company. Unless it can be shown by clear and convincing evidence at trial that the company was a de facto agent of the government, the claim fails.
Re: Re: Visa/MC are violating their customers rights.
Only the government can violate your 1st Amendment rights, but your 9th Amendment rights (right to privacy, freedom of association, the right to enter into a contract) can be violated by anyone (even private companies), regardless of their relationship with the government, hence civil lawsuits.
Re: Re: Visa/MC are violating their customers rights.
The Bill of Rights does not apply to a private company.
It does when it is acting as an agent of the government.
Unless it can be shown by clear and convincing evidence at trial that the company was a de facto agent of the government, the claim fails.
They are clearly acting as agents of the government. Thus, what the previous commenter said is correct. Glad to see you admit it, even if in a back-handed way.
Re: Re: Re: Visa/MC are violating their customers rights.
> They are clearly acting as agents of the government.
Not until they’re proven to have done so by clear and convincing evidence at trial.
Wikileaks isn’t their customer. The account holders are. Visa/MC are acting like Big Brother when you want to donate to Wikileaks. Funny, they don’t seem to willing to protect you when your identity is stolen, but for your own good, they must protect you from information.
Not neccessarily. This may be true in the U.S but many countries have laws that require equal treatment of customers as part of institutionalised legislation against discrimination.
One imagines a lawsuit may be based on issues of breach of contract but it’s possible in many jurisdictions that a company may be compelled to treat with customers (on equal terms with others) unless they can demonstrate cause not to.
Generally such laws tend to be restricted to arenas like retail selling from public fronting properties (to prevent private escalations of ethnic tensions for example).
It is an assumption that no such argument may be made in other jurisdictions, tohugh I expect a breacg of contract is the most likely argument to be made against Mastercard and Visa.
Re: Re:
Not neccessarily. This may be true in the U.S but many countries have laws that require equal treatment of customers as part of institutionalised legislation against discrimination.
In the US it is only illegal to discriminate against certain, special, privileged groups. Assange and WikiLeaks don’t count.
Ok Visa, and M/C in this situation come under the EU’s Very extensive Trade laws that are very strict and statute based.
One of these is that Trade on existing business relationships cannot be denied for discriminatory purposes or without due process.
Also whether they have a specific contract or not, due to pre-existing business an implied contract under EU laws is there and forfeiture could very well be shown
Not only that but the Electronic Funds Transfer statutes that the EU has in place are very specific in what Visa and M/C can and cannot do and have very concise and strict civil and criminal penalties.
Another criminal Law called Detinue could also be used because the monies are being withheld without authorisation by the agency in question. In this case M/C and VISA acts as agents for the customer and DataCell, and therefore are beholden to agency laws.
Sadly for the average small business and consumer, the consumer protection laws that are in place within the EU and in a similar vein Australia, are non-existent within the USA.
Presumably, Wikileaks has a First Amendment right to publish the material and Visa/MC/PP can not deny them service for pursuing that right. Wikileaks should file in federal court and let the games begin.