2012-04-03 #WikiLeaks financial blockade and protecting our right to spend

Authored by @Nicsha

ImageIf you spend five minutes watching commercial television or flicking through a mainstream magazine, you would think spending money is not only our birthright, but a move that is encouraged and welcomed.

We can buy almost anything from anywhere. We have the freedom to invest, bank online, and support innumerable charities and organisations across the globe; whether it's helping to protect animals, join the fight against cancer, advocate human rights or even speaking out to save a lake.

Unless of course, you are WikiLeaks.

Most people probably know that from the 7th of December 2010 (just after WikiLeaks began publishing the US diplomatic cables), MasterCard, Visa, Bank of America, PayPal and Western Union decided to stop their customers from making donations to WikiLeaks.

No longer contented with their own business, the major banks have launched a covert mission to invade ours by means of a financial blockade that prevents us from using their products towards causes we support.

What right does a company or foreign Government have to tell me, an Australian citizen, about how to spend my money? And, on what criteria do the bank and credit card companies determine who will be blockaded?

While many may have thought the financial blockade would only last a few weeks,almost eighteen months have passed and donations to WikiLeaks have dropped by 95 per cent, according to their estimates. In July 2011, WikiLeaks lodged a complaint with the European Commission for infringement of the EU Anti Trust Laws. We are still waiting for their decision.

In October 2011, growing impatient with waiting for common sense to prevail, I decided to lodge complaints with my bank in Australia and with MasterCard.

I contacted MasterCard five times by email and telephone. I received absolutely no response. They didn't even acknowledge my complaint.

Three different staff members from my bank worked on my complaint - one from the complaints, cards, and merchant areas.

The first assured me no section of my credit card terms and conditions (T&Cs) covered this situation and they would ask for it to be added (an interesting admission as T&Cs are supposed to be legally binding).

The second was more aggressive, and clearly annoyed at my persistence and my refusal to accept their decision that there was nothing they could do about a MasterCard decision. I was particularly intrigued by his reaction following my request for the bank to provide feedback to MasterCard, where he stated: "[We] have not provided feedback to MasterCard and we do not intend to do so. They are the owners of the product and you need to clarify directly with them." When I advised that I had tried on multiple occasions to contact MasterCard, to no avail, he didn't bother to respond.

In a conversation with the third staff member, it became clear that the bank excuse de jour was that WikiLeaks did not having a merchant facility. So, the reasoning goes, neither the bank, nor MasterCard are at fault. But, I asked, how could WikiLeaks be expected to have a merchant facility when the transaction blockade renders one useless?

In the end the staff member notified MasterCard about my complaint and even advised them that "their brand was at stake."

I also contacted the Australian Competition and Consumer Commission (ACCC) who rejected my complaints; the Australian Human Rights Commission (AHRC), who couldn't help as my complaint wasn't employment related; the Australian Securities and Investment Commission (ASIC), who don't cover banking practices and referred me to my bank or APRA; the Australian Prudential Regulation Authority (APRA), who don't regulate MasterCard and referred me to the RBA who regulate payment systems; the Reserve Bank of Australia (RBA), who don't look at individual disputes and referred me to the ACCC; and finally, the Financial Ombudsman Service (FOS), who referred me back to my bank before rejecting my complaint twice.

Despite rejecting my own and other people's complaints, the ACCC had the audacity to advise Senator Scott Ludlam during Senate estimates in February 2012 that they hadn't received any complaints. They later corrected themselves, and admitted they had.

The ACCC then kindly referred me to my bank, saying my complaint related to my Terms and Conditions (T&Cs). They also referred me to the Financial Ombudsman Service (FOS).

When I emailed the ACCC a graph showing the 95 per cent drop in donations to WikiLeaks after the blockade, the ACCC advised, "It cannot be established that MasterCard and Visa have acted 'in concert'".

Which begs the question, whether the ACCC actually investigates any complaints, or if it demands Australian citizens to provide their own evidence of corporate deceit before launching an investigation.

The FOS eventually escalated my complaint to their legal counsel, who rejected it on three grounds:

  1. They are "unable to review actions of any third parties to the dispute or the actions of an organisation which is not a member of our service."
  2. My bank "is not obliged to know who will accept payments made through MasterCard or what decision MasterCard will make in the provision of its service."
  3. "That it appears I had not suffered any financial loss due to the issue". They also stated they were unable to compel my bank to amend the wording of their credit card T&Cs.

So, I decided to seek legal counsel, and was advised that a class action suit brought by cardholders against MasterCard and Visa would face several hurdles, including: Who has suffered the actual financial loss? If WikiLeaks has suffered the actual financial loss, who bears the adverse cost risk if the action failed? But, I asked, with the blockade in place how could WikiLeaks ever hope to pay legal costs for the banking giants MasterCard and Visa, where proceedings would likely last many years?

In an attempt to determine what was driving the inaction of the various regulatory bodies, I lodged Freedom of Information (FOI) requests with the ACCC, ASIC, APRA and the RBA.

My request was deliberately broad asking for documentation relating to the WikiLeaks financial blockade, and included any rules, guidelines, practices, and precedents relating to decisions regarding complaints, enquiries and recommendations regarding the decision by MasterCard, Visa, PayPal, Western Union and American Express to block donations to the organisation WikiLeaks.

I also requested general statistics about how many enquiries and complaints were received and their outcomes.

The ACCC, APRA and the RBA all responded advising that they refused my request "under section 24A(1) of the FOI Act on the basis that the document does not exist."

Interesting statement considering the length of my ACCC complaint process and that other complaints they themselves admitted they had received.

The lack of documentation from these bodies reflects appalling record keeping practices and accountability. The RBA did, however, confirm it had received one complaint regarding the blockade - which I am certain was my own.

So where does this leave us today?

My months of complaints and enquiries revealed that MasterCard and Visa are outside of any and all regulation and accountability in Australia.

They are empowered to arbitrarily and indiscriminately restrict the facilitation of funds to companies and organisations from individuals, like myself, and this appalling breach of consumer rights worldwide must end.

For more information on what you can do, visit http://righttospend.com.

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