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.
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Filed Under: payments, wikileaks
Companies: datacell, mastercard, visa, wikileaks
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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.
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Re:
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.
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Re: Refusal
> 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.
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Re: Re: Refusal
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.
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Re: Re: Re: Refusal
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Re: Re: Re: 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.
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Re: Re: Re: Re: Refusal
Why should he? He didn't claim that they did.
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Re: Re: Re: Re: Re: Refusal
Yes he did.
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Re: Re: Re: Re: Re: Re: Refusal
So, no, he didn't.
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Re: Re: Re: Re: Re: Re: Refusal
So, no, he didn't.
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Re: Re: Refusal
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.
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Re:
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.
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Call this one a contract dispute and nothing else.
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Breach of contract?
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Contract
> 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.
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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?"
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Re: Defensive announcement?
Free advertising, They are "standing up to the Man", Internet cred. :)
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Mr. Fink
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.
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There's a whole world outside of the USA!
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.
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Re: There's a whole world outside of the USA!
"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.
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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.
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Re:
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.
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Re: Re:
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!
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Re: Re: Re:
...
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.
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Of course they can refuse service....
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.
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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.
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).
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Re: Re: Of course they can refuse service....
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And even if they were, MasterCard and Visa are credit card companies, not banks.
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Re: Re: Of course they can refuse service....
> 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.
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Re: Re: Re: Of course they can refuse service....
I guess you never heard of "deregulation", huh?
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Re: Re: Re: Of course they can refuse service....
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?"
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Re: Re: Of course they can refuse service....
Not legally they aren't.
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Re: Re: Of course they can refuse 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.
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Re: Of course they can refuse service....
So, your straw-man is a fool? Imagine that!
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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.
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I read this yesterday on CNET...
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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.
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Only One Problem
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.
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Re: Only One Problem
It's *moot* point. Not mute.
Sorry, pet peeve of mine.
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Re: Only One Problem
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.
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> "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.
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Like my local utility companies are private companies.
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Actually, it's nothing like that at all, either functionally or legally.
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Visa and Mastercard are Public Companies
Not that I think the companies should be forced to service certain customers, though.
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Re: Visa and Mastercard are Public Companies
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.
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Re: Visa and Mastercard are Public Companies
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.
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Re: Re: Visa and Mastercard are Public Companies
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Re: Visa and Mastercard are Public Companies
> 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.
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Re: Re: Visa and Mastercard are Public Companies
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.
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Lawsuit
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Options?
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Visa/MC are violating their customers rights.
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.
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Re: Visa/MC are violating their customers rights.
> 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.
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Re: Re: Visa/MC are violating their customers rights.
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Re: Re: Visa/MC are violating their customers rights.
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.
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Re: Re: Re: Visa/MC are violating their customers rights.
Not until they're proven to have done so by clear and convincing evidence at trial.
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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.
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In the US it is only illegal to discriminate against certain, special, privileged groups. Assange and WikiLeaks don't count.
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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.
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