You Can’t Hide Behind Your EULA

In response to VTech’s controversial new EULA in the wake of their massive data breach, Cooley LLP has a commentary. Here are some excerpts:

Apart from being a bit mean, it goes against the basic principles of data protection and consumer law in the UK. The Data Protection Directive 95/46 EC places obligations on the data controllers and processors to take appropriate steps to protect the information from unauthorised disclosure or access, the burden is not on the data subject. Further, the Consumer Rights Act 2015 (“the Act”) was drafted with the aim of increasing fairness and transparency for consumers, which includes in respect of digital content. The Act “greylists” certain limitations of liability and considers “transferring inappropriate risks to consumers” unfair and potentially unenforceable. Were this clause to be analysed in conjunction with the Act, it is unlikely the Competition and Markets Authority and/or Trading Standards would let this slip thought the net.

What now?

In response, the ICO stated that when handling people’s personal data, organisations are responsible for keeping that data secure. It is unclear whether there will be formal consequences for VTech, but if they do not change the wording, they could come under further scrutiny.

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