The cyber law series: Things you don’t know about those terms and conditions you never read


By Asheeta Regidi

The Delhi High Court sentenced Uber driver Shiv Kumar Yadav to life for raping a young woman executive in his car last November. The rapist was sent to jail, but the problems resulting from the lack of responsibility borne by drivers operating under services like Uber, Meru and Ola persists.

Here’s what Uber’s terms and conditions – at the time of the Delhi rape – said about its responsibility concerning drivers:

‘…Uber does not guarantee the suitability, safety or ability of third party providers…you acknowledge that you may be exposed to situations involving third party providers that are potentially unsafe, offensive, harmful to minors, or otherwise objectionable… Uber shall not have any liability arising from or in any way related to your transactions or relationship with third party providers…’

 The cyber law series: Things you don’t know about those terms and conditions you never read

Though the terms have since been modified to contain language that is a little less contentious, the essence remains the same: Uber and other taxi services do not take responsibility for drivers. In other words, downloading a taxi service app and agreeing to its terms and conditions is an affirmation that you alone are responsible for your safety; the company cannot be sued no matter what the crime – rape, murder or robbery. And what’s more, these terms will be binding on you.

While Indian courts haven’t yet ruled on this issue, they have been upheld to be binding abroad. The principal rider is that you had ‘adequate notice’ as to terms and conditions governing use. This is why you are repeatedly forced to click an ‘I Agree’ button before you can use the service, or why you are forced to scroll through the voluminous block of text before you click ‘I Agree’. It doesn’t even matter whether or not you actually read them, so long as you had an opportunity to read them. In cases where you just have a hyperlink to the terms and conditions, and no ‘I Agree’ button, the terms are still binding, so long as the hyperlink is conspicuous. For example, a small grey hyperlink on a grey background at the bottom of the screen does not constitute adequate notice.

Six things you should know about terms and conditions

1. The Limitation of Liability Clause: The clause from the Uber terms and conditions quoted above is a limitation of liability clause, which states that you cannot hold the company responsible for anything that goes wrong. Amazon’s limitation of liability clause, for example, states that it is only an online platform, and will not be liable for any deficiencies in the goods provided by a seller. Ebay’s clause states that its liability for data loss will be limited to the fees paid by the user to use Ebay’s services.

2. The Jurisdiction Clause: Take note of when you can or cannot sue. Some terms and conditions restrict you to arbitration, while others restrict you to courts in a particular jurisdiction. Another issue that turned up in the Uber rape case was that the app restricted jurisdiction to the courts in Netherlands. In one controversial case, the terms and conditions contained a clause that if you ‘liked’ the company on Facebook, you waived your right to sue.

3. The Privacy Policy: The Privacy Policy lists what sort of user information is collected, and what it can be used for. For example, the ‘policy’ section of the Google Maps app states that it “collects information on your phone number, calling party number, forwarding numbers, time and date of calls, duration of calls, SMS routing information and types of calls”. One wonders why an app on geolocation services needs access to such detailed information on the calls you make. The policy also states that it may collect geolocational information. This means that Google keeps records of where you went, and when you went there.

1984

4. License, Not Sale: It has now become apparent to those users buying music from iTunes that they don’t actually own the music they download; they are only gaining a license to it. This applies to software too. In 2009, Amazon Kindle deleted George Orwell’s 1984 from user accounts on the grounds that some copies were sold by accident. Amazon had the right to delete simply because the books are licensed to users; they don’t own them.

5. Suspension/ Termination of Account: Many companies retain the right to suspend or terminate the account at their sole discretion. Usually, this is not done except for a legitimate reason such as unlawful use by, or because the company is withdrawing its service. In one instance, an Amazon Kindle customer’s account was terminated, and her entire library of 43 books was deleted because Amazon said her account was ‘directly related to another which has been previously closed for abuse of our policies’. There was no clarification as to which account or how it was related.

6. Changes to terms and conditions: The particulars of the agreement usually contain a clause stating that terms and conditions can change at any time, without the service producer informing the user, and the user will be bound by these new terms. In 2011, Facebook changed its terms and made the previously hidden “friends list” public. This was done without the consent of the users. An action by the Federal Trade Commission in the US forced Facebook to change its policy and promise better privacy to its users.

The main issue with these agreements is that they offer no room for negotiation – it’s ‘take it or leave it’. You may use the services as they are or not at all. This does not, however, mean that you have no power to renegotiate terms. A behemoth like Facebook was forced to change its terms and conditions on account of public pressure and governmental intervention. If you see anything that you feel violates your rights, speak out against it. It just might resolve the issue.

The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.

The next part of the series will examine cyber stalking and sexual harassment.


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