Begin forwarded message:

From: “Infocentre Public Mailbox”

Date: 5 January 2012 12:01:26 PM

To: XXXXX

Subject: ACCC Response – Wikileaks [SEC=UNCLASSIFIED]

Dear XXXXX,

Thank you for your email of 22 December 2011 to the Australian Competition and Consumer Commission (ACCC) regarding the possibility of the conduct of MasterCard and Visa constituting a secondary boycott. The reference number for this matter is XXXXX.

This matter has been previously assessed in terms of its capacity to constitute a breach of the Acts anti-competitive provisions, including secondary boycotts. In this instance, we consider that this conduct is unlikely to constitute a breach of section 45D as at this stage it cannot be established that MasterCard and Visa have acted ‘in concert’ as required by section 45D(1). Acting in concert requires knowing communication between two parties in order to cause damage to another party. This requires more than two parties merely acting independently at the same time.

Furthermore, it must also be established that MasterCard and Visa are engaged in this conduct for the purpose of causing substantial loss or damage to Wikileaks. Generally speaking, a business has no obligation to supply to another business and is free to make decisions based on what that business believes is appropriate in the circumstances. Unless a distinct purpose to cause harm to Wikileaks can be established the conduct of MasterCard and Visa is likely to constitute independent businesses making decisions based upon the wants and ideals of those particular companies.

While at this stage this matter is unlikely to raise concerns under the Act the ACCC has recorded the additional information you have provided and this part of our ongoing analysis.

Thank you for contacting the ACCC.

Yours Sincerely,

ACCC Infocentre

1300 302 502

———-

From: XXXXX

Sent: Thursday, 22 December 2011 9:38 PM

To: Infocentre Public Mailbox

Subject: Re: ACCC Response [SEC=UNCLASSIFIED]

Thank you for your response XXXXX.

Donations to Wikileaks dropped by 95% after MasterCard and Visa decided to deny consumers the right to donate – surely this would be a clear cut case of causing substantial loss via a secondary boycott (I believe this is section 45D of the act)?

Regards,

 ———-

On 22/12/2011, at 10:17 AM, “Infocentre Public Mailbox” wrote:

Dear XXXXX,

Thank you for your email of 16 December 2011 to the Australian Competition and Consumer Commission (ACCC) regarding MasterCard’s decision to not allow users of its service to donate money to Wikileaks. The reference number for this matter is XXXXX.

The ACCC does not have an open mandate to take action against a business for what is perceived to be an unfair business practice. The ACCC can only take action where a breach of the Competition and Consumer Act 2010 (Cth) (CCA) has occurred.

The Australian Consumer Law (ACL), which is a component of the CCA, does not apply to financial products or services. This is specifically stated by section 131A of the CCA.

The CCA does regulate financial institutions where they have breached a provision of the CCA through engaging in anti-competitive conduct. Further details about what types of conduct constitute anti-competitive behaviour can be found at http://www.accc.gov.au/content/index.phtml/itemId/816373.

Generally speaking, individual companies are not obliged to trade with another business or organisation; they are free to make their own decisions about who they deal with and there is no automatic right on the part of a business to be supplied by them.

There are only a limited number of circumstances where a refusal to deal will constitute a breach of the Act; these include situations where there are agreements between competitors (horizontal) or between traders at different levels of the supply chain (vertical) which restrict supply to others in the market, or where a supplier of goods has a substantial degree of power in a market and uses that power to affect competition or prevent entry to a market (misuse of market power).

It is not the role of this office to provide legal advice. From the information you have provided, there appears to be no evidence of any anticompetitive agreement. Accordingly, this matter is unlikely to raise concerns under the CCA. We would therefore advise that you continue to pursue this matter through the FOS if you believe that a breach of your contractual arrangement with MasterCard has occurred.

You may wish to view the ACCC publication ‘Refusal to Deal’ for further information on this subject. The publication is available from the ACCC website at  http://www.accc.gov.au/content/index.phtml/itemId/304569.

Thank you for contacting the ACCC with your concerns. I trust this information is of assistance.

Yours Sincerely,

ACCC Infocentre

1300 302 502

 ———-

From: XXXXX

Sent: Friday, 16 December 2011 8:00 PM

To: Infocentre Public Mailbox

Subject: Fw: Fwd: ACCC Response [SEC=UNCLASSIFIED]

Hi XXXXX/ACCC staff,

Following on from my previous emails (shown below) I wanted to please pass on some feedback I have received from various other regulatory bodies regarding my complaint about MasterCard refusing to allow me to donate to Wikileaks.

Since the below emails, I have contacted ASIC, APRA, The Australian Human Rights Commission, the Financial Ombudsmans Service and the RBA in relation to this issue. Every single one of these bodies has referred me to contact you, the ACCC. As you may be able to appreciate, I have found this immensely frustrating as you have advised that you will not pursue this complaint on my behalf and to contact ASIC. Thankfully the FOS is liaising with my bank re the issue but so far have been unable to provide me with a reason for why this blockade is still ongoing.

I have also spoken with several other people who have escalated this same issue to you, and received the same response. This makes me wonder what exactly it takes to get the ACCC to pursue an issue which is such a blatant breach of consumer rights and a completely deceptive and unjustified action.

I have also discovered that MasterCard and Visa are not covered by ANY regulatory body in Australia. I find this completely unacceptable, that two such large multinational companies are completely unregulated and unaccountable. Throughout this process I have wondered what if they decided people could no longer donate to Amnesty or Doctors without Borders, or even the RSPCA? Consumers such as myself would have absolutely no recourse based on my experience. I am completely appalled that this can be possible in a supposedly modern and free society such as Australia.

Surely it is your role to stand up against injustices such as this? For if this situation is allowed to continue, we will not be able to guarantee it won’t happen again, and again until we are only able to donate to and purchase from, companies that MasterCard and Visa deem worthy.

I implore you to please investigate this blockade on behalf of Australia’s consumers, for if we don’t do something now, it may be common place in the future.

Regards,

———

Begin forwarded message:

From: “Infocentre Public Mailbox”

Date: 14 November 2011 1:07:40 PM

To: XXXXX

Subject: ACCC Response [SEC=UNCLASSIFIED]

Dear XXXXX,

Thank you for your further email of 12 November 2011 to the Australian Competition & Consumer Commission (the ACCC) regarding MasterCard Australia Ltd.

 Firstly, the ACCC endeavours to focus on systemic or widespread issues rather than trying to resolve all individual consumer complaints. In general, investigations are conducted confidentially and the ACCC does not comment on matters it may or may not be investigating.

 As mentioned previously, the details of your original email have been recorded and will be used to determine whether there is a pattern of behaviour by a particular trader or in a particular industry that raise broader concerns.

 I understand from your email that you feel MasterCard Australia Ltd have misrepresented their service. Under the ACL complaints that relate to financial products and services are primarily the responsibility of the   Australian Securities and Investments Commission (ASIC).

As such, in this instance it is more appropriate that you contact the Australian Securities and Investments Commission (ASIC) with your concerns. ASIC can be contacted on telephone 1300 300 630 or at http://www.asic.gov.au.

Thank you for contacting the ACCC with your concerns. I trust this information is of use.

Yours sincerely

ACCC Infocentre

Ph: 1300 302 502

———-

From: XXXXX

Sent: Saturday, 12 November 2011 8:35 PM

To: Infocentre Public Mailbox

Subject: Re: ACCC Response [SEC=UNCLASSIFIED]

Hi XXXXX,

Thanks for getting back to me so quickly regarding my complaint. I have written to MasterCard already, but received no response from them so far – hence why I escalated my issue to the ACCC. I’ve read through the terms and conditions for my credit card and there is no section in it I can see that specifies that MasterCard can selectively ‘block’ certain organizations.

I was of the understanding that credit card terms and conditions were legally binding documents which must include absolutely every detail so consumers can make an informed decision regarding that product. As nothing is mentioned in my terms and conditions I would have thought this would be an example of MasterCard/[My Bank] misrepresenting their services to me?

I have also spoken with my bank (and lodged a complaint with them) as they were also unable to tell me exactly where in the terms and conditions it states that either they and/or MasterCard can selectively ‘block’ me from using my card to donate to certain organizations.

I find it especially abhorrent and deceptive that MasterCard is accepted for organisations such as the Ku Klux Klan and Pro-Nazi group The Aryan Nation, whereas Wikileaks is blocked. I feel this makes their conduct even more deceptive.

Can you please confirm if my options are still to seek independent legal advice and possible civil action and that the ACCC can provide no assistance with my complaint?

Thank you,

———-

On 10/11/2011, at 11:39 AM, “Infocentre Public Mailbox” wrote:

Dear XXXXX,

Thank you for your email of 9 November 21011 to the Australian Competition and Consumer Commission (ACCC) regarding MasterCard Australia Ltd refusing to transfer funds to Wikileaks. Your reference number for this matter is XXXXX.

 The ACCC is responsible for administering the Competition and Consumer Act 2010 which incorporates the Australian Consumer Law (ACL). The ACL is a national law which applies to all business sectors. It covers general standards of business conduct, prohibits harmful practices, regulates specific types of business-to-consumer transactions, provides basic consumer rights for goods and services and regulates the safety of consumer products and product-related services.

 It should first be noted that, broadly speaking, companies are free to set the terms and conditions of their contracts as long as they do not engage in misleading or deceptive conduct or misrepresent their service.

After careful consideration it appears that the issues you raise are very specific matters of a contractual nature and will depend on the terms and conditions of the contracts you have entered into. While it is not the role of this office to provide legal advice, I would suggest you put your complaint in writing directly to MasterCard Australia Ltd in an endeavour to resolve your concerns. Should you still be dissatisfied, you may wish to seek independent legal advice on whether civil action might be appropriate. In this regard it may be possible to bring action in the small claims court or tribunal. It is open to an aggrieved party to bring a private action if they believe they have suffered loss or damages as a result of any breach of the terms or conditions of a contract.

 Furthermore, the ACCC cannot pursue all the complaints it receives. While all complaints are carefully considered, the ACCC must exercise its discretion to direct resources to the investigation and resolution of matters that provide the greatest overall benefit for consumers and businesses. The ACCC’s Compliance and Enforcement policy describes in more detail how this discretion is exercised. This policy, which is available on the ACCC’s website [www.accc.gov.au], lists a number of factors that are weighed including whether conduct raises national or international issues, involves significant consumer detriment or a blatant disregard of the law.

 As part of its role the ACCC also monitors emerging trends across consumer and business complaints to determine whether there is a pattern of behaviour by a particular trader or in a particular industry that requires attention. In this regard, your complaint has been recorded and is an important part of our ongoing analysis.

Thank you for contacting the ACCC with your concerns. I trust this information is of assistance.

Yours sincerely

ACCC Infocentre

Ph: 1300 302 502

———-

From: XXXXX

Sent: Wednesday, 9 November 2011 8:33 PM

To: Infocentre Public Mailbox

Subject: Complaint form submission [SEC=UNCLASSIFIED]

Complainant details

Contact details

Date received: 9th November 2011

Product provider: MasterCard

Product description: Credit card donations

Complaint

Hello, I would like your assistance please with a formal complaint I lodged with MasterCard Australia on the 25th of October regarding why I am prevented from making donations to the organization ‘Wikileaks’ via my MasterCard.  I make many purchases and donations both in person and online without any problems, however I find that I am unable to with Wikileaks as apparently MasterCard have decided (in cooperation with Visa) to prevent consumers from doing so. I believe this is an infringement on my consumer rights and I have found no paragraph in the Australian Federal Competition and Consumer Act 2010 that could justify their actions. I have also checked the Australian Governments listing of Terrorist Organisations and Wikileaks is not listed. I therefore find no basis for MasterCard to prevent me from using my MasterCard to make a donation to Wikileaks.  I advised MasterCard that I would consider escalating my issue to the ACCC if they did not overturn this decision and allow me to use my MasterCard to make donations to Wikileaks. I also asked them to respond within 10 working days, which they have not. I would like your assistance to force MasterCard to change this decision. Please let me know if you require any further information. Thank you, XXXXX