Misrepresentation? A look at OLX vs. MyBenta legal threat

I received a question lately from several online contacts in relation to MyBenta.com’s open email to RJ David’s warning and legal threat composed by its founder – Emmanuel Rey Mariano. The questions  center on  – “Can a competing classified ad website send an email or text message to OLX sellers informing them of their services (similar to OLX )? Is this illegal?”

The OLX we know today was the former Sulit.com.ph website. It started out as a free classified ads posting site supported by ads and premium listing. This year, free posting was limited. Anyone wanting to post more should pay a fee for extra. In essence, based on my conversation with RJ David at the recent PeepCon event, “The focus is more on quality rather than quantity. A good number of OLX users as well have started using their mobile app” (that seems to be not tracked yet by Alexa).

Since OLX pursued this limited posting policy, several sites came out more aggressively whose business model reflect what Sulit was originally all about. One of them is MyBenta. Based on their Alexa ranking, MyBenta seems to be building momentum in comparison to its counterparts.

Screen Shot 2015-05-11 at 5.15.03 AM

Here are my personal views on the matter in relation to what Emmanuel of MyBenta said in his open reply.

False representation or computer related identity theft?

Based on RJ’s original message in the open reply, the issue seems to anchor on “misrepresentation though the text messages sent”. As I don’t have a copy of MyBenta’s text message, I can’t assess whether their text messages can be viewed as misrepresentation of OLX or computer related identity theft (as defined in the Cybercrime Law).

Blogger and gadget cellphone enthusiast Ronj A. of BenteUno.com shared receiving a text message from an anonymous number sometime ago. “I’ve received an sms once from an unknown number saying that olx is not free anymore. At the latter part of the message it says “… Follow other Filipino online sellers migrate to –www.mybenta.com” Sayang lang I don’t have the sms na with me. I wish I could’ve taken a screenshot. It’s just I’ve been receiving marketing sms lately kaya nabubura ko agad. But I was really shocked with that sms, kasi I sell preloved items sa olx/sulit for more than 1 year na.

IF what Ronj A. shared indeed came from MyBenta, then it is likely that this is the one that caught OLX attention. Saying that OLX is no longer free may not exactly be accurate as they still have free listing although limited. Implying that “the sellers are migrating” may be viewed as either a competitor or OLX sending a public announcement of a new site to be used. It can be misunderstood. (But then again, from the visual looks of the site, it is likely the difference between OLX and MyBenta would be obvious. Unless those who got the text message assumed that MyBenta is affiliated with OLX.)

MyBenta.com

MyBenta.com

 

Data privacy violation?

In the case of OLX, the seller’s info is not displayed publicly by default such as the contact number of the seller. Although you can click the text under it that allows you to view the full info.

Screen Shot 2015-05-11 at 5.14.27 PM

A sample listing at OLX viewed publicly.

 

OLX can argue that getting such info is a violation of their user’s data privacy (they may indicate that the info was misused – outside of its original intent – which is to get inquiries on the products they are selling) and their intellectual property (although debatable if we view the content as the seller’s and / or OLX’s intellectual property).

Although MyBenta may also argue that they did not violate any OLX guidelines as there is no mention of any prohibition on contacting sellers to offer competing services in its terms and conditions.

Data privacy rights

By default, if there is no consent from the data subject (which is all of us Filipinos) on how our info is used (such as email or mobile number or information), each one of us can demand for source of info and ask for such to be removed.

We can also complain to the telecommunications company or NTC about any number or entity sending messages repeatedly – tantamount to spamming.

In any classified ads site vs OLX, it will drag OLX if the user perceived the text or email message they got from any classified ads site appeared to be coming from OLX — worst if they have paid for advertising services with that assumption. (Although in this case – from the visual looks of their site, it seems unlikely for MyBenta to be mistaken for OLX. Unless those who got the text or email message assumed that MyBenta is affiliated with OLX.)

RJ’s past actions relevant?

Emmanuel quoted RJ several times in the open reply citing interviews on how RJ built his site. Using RJ’s past marketing practices against him may be irrelevant as the Data Privacy Law and Cybercrime Law does not exist then yet.

OLX vs. MyBenta in courts soon?

More or less, I have an idea on what will be done to build a strong case on both defense or offense. Posting that message / reply to RJ publicly (which I think is partly a violation of RJ’s data privacy and intellectual property – email has copyright too) does not help as it can be perceived with the intention of putting RJ in a bad light (there goes libel).

With that kind of open reply (which may be perceived as a “dare”), It seems MyBenta is ready for a legal battle. Although OLX has resources, will they likely hesitate or use it?

Let market forces prevail?

I truly believe in the spirit of competition. Let the market decide. There is a space for everyone under the sun – as I would usually say.

Although I admit that it becomes a different story when users of SITEA starts complaining about inconvenience experienced on unsolicited messages received from SITEB, SITEC, SITED – as a result of being listed. Worst, if they make a wrong assumption on the source and content of messages – perceiving it as from SITEA – when it is not.

8 comments

  1. Clarisse Tran - reply

    Some issues that were left out or missing in this article:

    -RJ demanded that Mybenta remove its community feedback on the homepage, alleging that it’s misrepresentation of OLX. Is that a direct attack on freedom of speech and expression, which is a basic and constitutional right?

    -RJ introducing himself as OLX Philippines founder, in my opinion, is unethical and a misrepresentation of the brand he is trying to protect.

    -RJ’s action in the past may not fall under Cybercrime or Data Privacy Law, but how about NTC policy which has already in placed that time? Attacking a competitor with the same practice you committed before seems a question of motive/intention.

    -Most importantly, OLX should reflect on its business practices given the reaction of their former members on paid ads and unfair policies–like their customer support not responding when they are asking for refunds.

    • Janette Toral - reply

      Hi Clarisse. I have to trace back the exact time period when RJ did such dissemination via SMS to check NTC guidelines available at that time. Will gather more info and calibrate this blog post further. Thank you for the inputs.

  2. Darwin - reply

    We recently launched Health Funatics, and one of many venues for selling our products online was OLX. We had an opportunity to experience OLX a few months before the policy changes where implemented. We were also one of the first few to post on MyBenta, our ads were one of the first 500 based on the ad numbers.

    We used to have a ton of ads posted on OLX until they recently changed policies and disallow ads that falls under its “Consumer Products and alike (vitamins, supplements, hair-care, hygiene, weight-loss, cosmetics, etc.). At some point, all of our ads were taken down, including those that did not fall under any of the categories that were supposedly disallowed so we had to go through the process of appealing and questioning the validity and fairness of the process since at that point, other advertisers with similar product lines had ads that were still active.

    As an advertiser, we get inquiries and texts of all sorts of shapes and sizes, including those similar to what MyBenta sent. We personally feel that getting an opportunity for a new avenue to sell our products is way better that getting bogus orders and lowball offers to buy some of our products. As an advertiser, we posted our contact information precisely so we can be contacted about our products, be it a potential sale, or a potential avenue to reach more potential customers.

    I would never have moved out of OLX even if I post ads on 20 other MyBenta and similar other venues. This is a game of numbers so the more you reach, the better your chances of converting those to a sale. I would have had poured most of our resources and time maintaining and prioritizing our listings on OLX even if we had other ads posted elsewhere. I guess the point is, MyBenta’s move and efforts to text every mobile number posted by OLX advertisers would not have affected OLX at all if they didn’t give compelling reason for its advertisers to entertain other venues.

    When we signed up with OLX, it was voluntary. When we elected to post our contact information for the world to see, we did so openly. Now, going back to the issue of MyBenta sending SMS to OLX’s advertisers. Whose privacy was violated? OLX’s or its advertisers?

    • Janette Toral - reply

      Hello Darwin. Thank you for the experience and insights shared here. Violation of data privacy under the Data Privacy Law will depend on the views of the data subject affected (which in this case – of sellers who listed in OLX).

      IF OLX served as the vehicle for their information to be known and be misused, sellers can also demand for accountability from OLX. Although the E-Commerce Law gave exemption to service providers (like OLX) especially if they don’t profit on a per transaction level. Nevertheless, OLX may also be compelled to take action to protect their interest and of their users – especially IF there are situations where these messages were perceived to be from them – but it is not. Or IF it contains information about OLX that is inaccurate. Resulting to false representation.

      I am interested incorporating your sharing in my blog post piece. If you are giving consent, kindly send me an email at digitalfilipino@gmail.com and a heads-up at http://facebook.com/janettectoral once sent (use your personal identity on FB when messaging me as I need to quote you as a person). Thank you again for your inputs.

  3. Meg - reply

    Online Ads placement is one of few tools that are truly useful for Businesses and Individuals alike.. and FREE at that. Online Ads site owners are doing a service AND lets not forget that there are costs in setting up, running and maintaining such sites – by costs that means time, effort and actual monetary expenses AND being a business, eventually a profit is made.

    And that’s where the crux of that matter really is on this “dispute” …. its a plain attempt to maintain a monopoly. OLX is foreign – and even before 2010 when it was still Sulit.com.ph, it was already foreign owned. Ayosdito was foreign owned as well and was taken over by OLX …again to maintain a monopoly.

    Monopolies make money. And that’s why there is much interest for OLX to act the way it does… but imagine if its the only site left, and its starts charging for ALL ads. We can imagine mybenta acting just like OLX now if it is the ONLY classified ads site left in the Philippines. Maybe the only mistake of mybenta is not wording it properly… it should have said instead that OLX may be FREE but it can also be 100 to 100 to 700 pesos. Now THAT is true!

    So people, it is best for all (except for the monopoly) to have a wide playing field. Yes we do run our own free Ads site menosgastos.com.ph

    … and we don’t mind it there are plenty others – and that people can place Ads in any and/or all of them… as you can see even from newspapers nowadays, Globe and Smart and PLDT etc advertise in Manila Bulletin, Inquirer, Philippine Star. SO go ahead, advertise in OLX, advertise in mybenta, and advertise in menosgastos. Its all good for everyone.

  4. michael - reply

    constant changing of ad policy is difficult under olx. Now I place offset printing under mybenta.

  5. FRED - reply

    felt strange viewing ads site for filipinos to sell or buy by a foreign entity. nothing against globalization, but they should know where they stand [threatening a local online]. not just the monopoly issue. why should anybody confine a business to make ads where they had to pay vs getting free. people! hope you know by now WHO’S who. mybenta i hope you’re really local promoting freedom and democracy online.

    being global is good. limiting options is not good. it’s not GLOBAL. worse it’s curtailing online freedom and wants to take over business own discretion on where to fish!

  6. Mydiskarte - reply

    Whenever I post to olx I always expect a buyer contacting me the next day. Easy to sell. I havent tried mybenta though.

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