iTunes, Appstore and Google Play Osnabrück, Conference on Platform Services in the Digital Single Market November 2015 Internationale Juristenvereinigung Osnabrück, 30 September 2015 Prof. dr. M.B.M. Loos

Introduction Incorporation of Terms and Conditions (T&Cs) under European consumer law Unilateral changes of terms by OSP Limitation and exclusion of liability by OSP International jurisdiction and choice-of-law clauses Concluding remarks  See M.B.M. Loos, J.A. Luzak, ‘Wanted: A bigger stick. On unfair terms in consumer contracts with online service providers’, Journal of Consumer Policy, available online (open access, DOI: /s ; also via SSRN, ResearchGate)  Dropbox,Twitter, Facebook, Google Loos, iTunes, Appstore and Google Play2

Incorporation and provision of T&Cs (1) CJEU 21 May 2015, case C-322/14, ECLI:EU:C:2015:334 (El Majdoub): clickwrapping  I accept the Terms and conditionsTerms and conditions (Precontractual) information obligations in EU law (CRD, UCPD)  Relevant for many T&Cs Loos, iTunes, Appstore and Google Play3

Incorporation of T&Cs (2): E-Commerce Directive Art. 10(3) E-commerce Directive  Contract terms and general conditions provided to the recipient must be made available in a way that allows him to store and reproduce them. Loos, iTunes, Appstore and Google Play4

Incorporation of T&Cs (3): Services Directive Art. 22 Services Directive  1. Providers must make available to recipient of service  (f) General conditions and clauses used by provider  2. To be made available according to provider’s preference:  (c) Easily accessed by recipient electronically by means of an address supplied by the provider;  4. In a clear and unambiguous manner  And in good time before conclusion of the contract or,  Where there is no written contract, before the service is provided Loos, iTunes, Appstore and Google Play5

Incorporation and provision of T&Cs (4) Acceptance required  CJEU 21 May 2015, case C-322/14, ECLI:EU:C:2015:334 (El Majdoub): clickwrapping  I accept the Terms and conditionsTerms and conditions Make TCs available  Easily accessible by means of webadress supplied by trader (Services Dir.)  At time of conclusion of contract/performance of service  Possibility to store and reproduce (E-commerce Dir.) Loos, iTunes, Appstore and Google Play6

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Do Apple App store and Google Play comply with EU law? Acceptance: no clear reference to use of T&Cs Make TCs available  Easily accessible by means of webadress supplied by trader (Services Dir.)  Search and click, and click, and click, and…  At time of conclusion of contract/performance of service  Possibility to store and reproduce (E-commerce Dir.)  Copy/paste to Word-document Loos, iTunes, Appstore and Google Play19

Unilateral changes of terms by OSP CJEU regarding unilateral right to modify price terms:  Contract sets out conditions for price change and criteria for calculation of the new price  Consumers have a right to terminate contract after receiving information about the intention to change price  Cases C-472/10 (Invitel), C-92/11 (RWE), Case C-26/13 (Kásler) Same rules for other unilateral changes?  Esp. when pertain to essential parties’ rights and obligations  See M.B.M. Loos, J.A. Luzak, ‘Wanted: A bigger stick. On unfair terms in consumer contracts with online service providers’, Journal of Consumer Policy, available online (open access, DOI: /s ; also via SSRN, ResearchGate)  Dropbox,Twitter, Facebook, Google 20Loos, iTunes, Appstore and Google Play

Changes of terms: iTunes and Appstore (1) iTunes reserves the right to modify the Usage Rules for future purchases on the Service at any time. However, such changes will not apply to iTunes Products that you have already purchased. Notwithstanding any other provision of this Agreement, iTunes and its licensors reserve the right to change, suspend, remove, or disable access to any iTunes Products, content, or other materials that are offered by the Service without notice. In no event will iTunes be liable for making these changes. (…) Removal of content from the Service will not affect products that you have already acquired from the Service. 21Loos, iTunes, Appstore and Google Play

Changes of terms: iTunes and Appstore (2) iTunes reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the Service. Such modifications and additional terms and conditions will be communicated to you and, if accepted, will be effective immediately and will be incorporated into this Agreement. In the event that you refuse to accept such changes, iTunes will have the right to terminate the Agreement. 22Loos, iTunes, Appstore and Google Play

Changes of terms: Google Play (1) If the Terms change, you will be asked to accept new terms before you next purchase Content. Once you have accepted the new terms, they will apply to your use of all Content (including Content you have purchased in the past) and all subsequent purchases, until we notify you of further changes. If you refuse to accept the updated terms then you will not be able to buy any further Content through Google Play, and the latest version of the Terms that you accepted will continue to apply to your use of Content. (…) 23Loos, iTunes, Appstore and Google Play

Changes of terms: Google Play (2) (change not accepted:…) In this case we will (…) give you a reasonable period of time in which to download a copy of any Content you have previously bought from Google Play to your Device After that time has expired, you will not be given a further opportunity to download the Content you have previously bought and it is possible that you will no longer be able to use Google Play to access or use the Content you have already bought or related support services 24Loos, iTunes, Appstore and Google Play

Limitation and exclusion of liability by OSP Unfair?  Clauses (a, b) Annex to Unfair Terms Directive  Full exclusion or minor limitation?  Cause of damage, type of damage 25Loos, iTunes, Appstore and Google Play

Liability: iTunes and Appstore (1) Disclaimer of warranties; liability limitations  a. iTunes will provide the Service with reasonable care and skill. iTunes does not make any other promises or warranties about the Service and in particular does not warrant that:  (i) your use of the Service will be uninterrupted or error-free (…)  (ii) the Service will be free from loss, corruption, attack, viruses, interference, hacking, or other security intrusion which shall be events of Force Majeure, and iTunes disclaims any liability relating thereto (…) Loos, iTunes, Appstore and Google Play26

Liability: iTunes and Appstore (2) Disclaimer of warranties; liability limitations  b. Except as set out in (d) below, or in the event that you are exercising any applicable statutory right to refund or compensation, in no case shall iTunes (…) be liable for any loss or damage caused by iTunes, (…) where:  (i) there is no breach of a legal duty of care owed to you by iTunes or by any of our employees or agents;  (ii) it is not a reasonably foreseeable result of any such breach;  (…)  (v) it relates to loss of income, business or profits, or any loss of data or corruption of data in connection with your use of the Service  (…)  d. Nothing in this Agreement removes or limits iTunes’ liability for fraud, gross negligence, wilful misconduct, or for death or personal injury. Loos, iTunes, Appstore and Google Play27

Liability: Google Play No term on liability in Google Play Terms of Service But wait….  Applicable terms. Thanks for using Google Play. Google Play is a service provided by Google Inc.(…), and is subject to the Google Terms of Service ("Google ToS"). Google Play is a “Service” as defined in the Google ToS, and these Google Play Terms of Service are additional terms which apply to the use of Google Play. Your use of Google Play and the digital content available on it is subject to these Google Play Terms of Service and the Google ToS (which together we refer to as the “Terms”). Google Terms of Service Loos, iTunes, Appstore and Google Play28

Liability: Google Terms of Service (1) Google Terms of Service  We provide our Services using a commercially reasonable level of skill and care and we hope that you will enjoy using them. (…) We provide the Services “as is”.  Some jurisdictions provide for certain warranties, like the implied warranty of merchantability, fitness for a particular purpose and non-infringement. To the extent permitted by law, we exclude all warranties.  When permitted by law, Google, and Google’s suppliers and distributors, will not be responsible for lost profits, revenues, or data, financial losses or indirect, special, consequential, exemplary, or punitive damages. Loos, iTunes, Appstore and Google Play29

Liability: Google Terms of Service (2) Google Terms of Service  To the extent permitted by law, the total liability of Google, and its suppliers and distributors, for any claims under these terms, including for any implied warranties, is limited to the amount you paid us to use the Services (or, if we choose, to supplying you the Services again).  In all cases, Google, and its suppliers and distributors, will not be liable for any loss or damage that is not reasonably foreseeable.  We recognize that in some countries, you might have legal rights as a consumer. If you are using the Services for a personal purpose, then nothing in these terms or any additional terms limits any consumer legal rights which may not be waived by contract. Loos, iTunes, Appstore and Google Play30

Private international law Art Brussels I (recast)  Economic activity (also) targeted to consumer’s country  Consumer may sue in home country and country trader  Trader may only sue in country consumer Art. 6 Rome I  Economic activity (also) targeted to consumer’s country  Law of country of residence of consumer applicable  Choice-of-law may not deprive consumer from mandatory protection 31Loos, iTunes, Appstore and Google Play

International jurisdiction clauses and Choice-of-law clauses: iTunes Nothing on international jurisdiction Miscellaneous  This Agreement and the use of the Service is governed by English law. Loos, iTunes, Appstore and Google Play32

International jurisdiction clauses and Choice-of-law clauses: Google Play Google Terms of Service  The courts in some countries will not apply California law to some types of disputes. If you reside in one of those countries, then where California law is excluded from applying, your country’s laws will apply to such disputes related to these terms. (…)  Similarly, if the courts in your country will not permit you to consent to the jurisdiction and venue of the courts in Santa Clara County, California, U.S.A., then your local jurisdiction and venue will apply to such disputes related to these terms. (…) Loos, iTunes, Appstore and Google Play33

Concluding remarks Challenging unfair contract terms of OSP  Consumers? Unlikely  Opportunity for consumer authorities and consumer organizations Is use of unfair term an unfair commercial practice?  Consumer authorities: possibility to impose fine? 34Loos, iTunes, Appstore and Google Play