The adequacy of the Directive on Unfair Terms in Consumer
Contracts with Amazon.uk Terms and Conditions
Master Thesis Baptiste Hautiere
Submitted the 30th July 2017 European Private Law Supervisor: M.B.M Loos
This master thesis would not have been possible without the guidance and dedication of Professor Marco Loos, to whom I wish to express my gratitude.
Abstract
As a starting point, this thesis is based on the idea that European consumer law has shapped a paradoxical situation in relation to consumer protection. This idea will be illustrated through the standard, pre-formulated terms of a well known online platform, Amazon. This platform is notably acting as a direct seller to consumers, which removes the possible doubts regarding the quality of the intermediary, currently existing with other platforms.
As it will be developed, There is little doubt that European consumer law provides strong incentives for the seller to comply with its requirements.
Still, despite this effectiveness, are consumer law standards really adapted to the reality of consumer practices ?
In my opinion, it is likely that the multiple sets of terms used by a platform are designed for compliance with legal requirement, rather than facilitating the understanding of real consumers.
The present assessment will question whether the unfairness test effectively prevent terms from creating a damaging situation for consumers, or if a term that pass the unfairness test, may still in practice create a damaging situation for consumers.
A focus on the Unfair Contract Terms Directive, notably targeted on pre-formulated terms, is also accurate regarding the general criteria of assessment provided, and the explicit mention of the requirement of plain and intelligible language.
The aim of this thesis is then to establish if an ideal situation may be reached for those consumers, through the requirements of the UCTD.
Table of contents
The adequacy of the Directive on Unfair Terms in Consumer Contracts with Amazon.uk
Terms and Conditions ... 1
Abstract ... 2
Introduction ... 4
1) Scope and context inherent to the Unfair Contractual Terms Directive ... 11
2) A discretionary power to alter the consumer consent ... 12
3) Amazon policy regarding choice of law ... 18
4) A focus on trial periods ... 22
5) A focus on In App Purchase ... 24
6) The fairness of the data provision terms ... 26
7) Amazon policy regarding conservation of data ... 29
8) A focus on Amazon Privacy Notice ... 31
9) Amazon liability terms ... 32
Conclusion ... 34
Bibliography ... 36
Introduction
According to Amazon founder Jeffrey P. Bezos in his annual report of 2016, « customers are
always beautifully, wonderfully dissatisfied, even when they report being happy and business
is great. Even when they don’t yet know it, customers want something better, and your desire to delight customers will drive you to invent on their behalf. »1.
This statement refers to the constant innovation in Online retailing, which brought consumer law into a new era of complexity, facing the diversification of the services and the very nature of those services themselves.
It raise little discussion that Amazon is amongst the most innovating actors online.
The recent Bid over Whole Foods2, a famous store specialized in biological product, is even occurring some future change overs its mode of distribution. Amazon would then become the first platform going back to physical shops.
The absence of explicit regulation on platforms, not addressed by the new set of legislative proposals3 recently unveiled by the European Commission, allows us to assume two things. In my opinion, it is likely that more latitude is granted to a future targeted Directive by the European Legislator. Another reason would be the effectiveness of the existing Directives to regulate platform activities regardless of their special statute.
Under these conditions, it is more realistic to apprehend the platform through the traditional activities covered by European consumer law Directives
In times where the economy is mainly driven by digital innovation, legal rules must adequately reflect technological realities4. This paradigm notably implies that, for a platform as important as Amazon, it is foreseeable that as many Consumer law requirements as possible are carefully implemented in their terms and conditions. In my opinion, this implementation is directed at minimizing the legal risk through their business practice
1 Annual Report Amazon 2016 http://phx.corporate-ir.net/phoenix.zhtml?c=97664&p=irol-reportsannual 2 https://www.forbes.com/sites/ciocentral/2017/06/23/amazon-buys-whole-foods-now-what-the-story-behind-the-story/#1de1eea9e898
3 Proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content COM(2015) 634 final; Proposal for a Directive of the European Parliament and of the Council on certain aspects concerning contracts for the online and other distance sales of goods COM(2015) 635 final
4 Marx/Wüsthof: CJEU shuts down Safe Harbor for Transatlantic Data Transfer – Case C-362/14 Maximilian Schrems v Data Protection Commissioner EuCML 2015, 242-246, 246, Maximillian Schrems v Data Protection
An optimal way to adapt consumer protection to new practices and innovation in business, is the following. Directives making use of general tests, such as the UCTD, are more likely to be relevant on further modifications than requirement that are implemented by a term, such as the withdrawal right. 5 According to the same author, this would allow to keep pace with the industry’s high level of technical innovation and the continuous appearance of new business models.
The choice of Amazon for this assessment amongst the existing platform can be justified for several reasons.
Unlike eBay, which is exclusively offering a platform for seller and buyer, Amazon, additionally to its role of platform, also sell products directly.
Amazon also represent one of the two “A’s” of the acronym GAFA (Google Amazon Facebook Apple), which represent the most powerful companies of the online world, the “Over The Tops”.
More precisely, the scope of the analysis will be focused on the relation between Amazon in its role of seller and a consumer buyer. This choice can be legitimate on several bases.
The UCTD may be used only in a context where the seller is a professional.
According to the Directive, a party can only be considered a trader or supplier if they are a natural or legal person acting ‘for purposes relating to his trade, business, craft or profession6
Even if the characterization of Amazon as a professional seller is nearly unavoidable, as it is demonstrated in this paper, the statute of the other sellers present on Amazon is unclear. This is especially true when Amazon is offering a “Basic Account”, for natural persons only, whose sales amount to less than 35 items a month.
In this case, it is not clear whether those individuals would be considered as a professional seller.
This concern has already been met on other platforms as well.
Regarding the example of someone occasionally renting a property on Airbnb7, discussions were held on the applicability of the UCTD to a party who “rents out a flat only for a few
5 Christoph Busch, Hans Schulte-Nölke, Aneta Wiewiórowska-Domagalska, Fryderyk Zoll The Rise of the Platform Economy: A New Challenge for EU Consumer Law? EUCML Issue 1/2016, 3-10, 4
6 Art. 2(c) of Directive 93/13/EEC on unfair terms
days or weeks each year and only during the time that they are on holiday themselves, which where arguably not acting for business purposes”8.
To avoid uncertainty, a focus on Amazon acting as a seller in relation to a consumer buyer is desirable.
The contractual framework that evolved around Amazon’s activities is varied and diverse. The present assessment consists of applying the UCTD to a platform selling goods to a consumer buyer. In this context, for someone to buy online they require an account. However, merely searching for products does not require an account. Depending on consumer activities, a different set of terms are applied to him.
The activity of searching for a product doesn’t require the user to be logged into an account. As it will be developed, the Privacy Notice9 as well as the Terms of Use are applied through a simple utilisation of the website.
If the consumer is purchasing, there is a requirement to have an account. Creating an account require to agree to the Terms of Use and Sales10, as well as the two sets mentioned above. At each purchase of goods, Amazon is offering specific delivery options, such as the “2-hours delivery”. A consumer is consequently also exposed to the Prime Terms of Use11, which concerns the premium membership.
The terms related to typical behavior of a consumer, searching for products and purchasing, constitute the referential for the application of the UCTD to Amazon. It includes its Terms of Use, Terms of Sales, Privacy Policy, and the Prime Terms of Use.
Statistics shows that an average 5% 12of users are reading terms and conditions of online platform service providers when registering. It can be assumed that the accumulation of a distinct set of terms, with multiple correlation through short links, imply an exponential increase in the amount of document to read. It also increases the complexity of the understanding for the consumer of the issue at hand and to take note of the rights and obligations of each party.
For this reason, when facing several distinct terms and conditions, it is likely that the number of consumers reading them will be even fewer.
8 District Court Amsterdam 26 May 2015, ECLI:NL:RBAMS: 2015:3903, paras 12-15 9 https://www.amazon.com/gp/help/customer/display.html?nodeId=468496
10 https://www.amazon.com/gp/help/customer/display.html?nodeId=508088 11 https://www.amazon.com/gp/help/customer/display.html?nodeId=13819201
12 Mitja Kovač & Ann-Sophie Vandenberghe Regulation of Automatic Renewal Clauses: A Behavioral Law and Economics Approach J Consum Policy (2015) 38:287–313, 288
Consequently, it is likely that the situation where Amazon is acting as a seller is already hard enough to apprehend for a consumer.
According to scholars, the practice of including a reference to a distinct contractual party’s terms and conditions constitutes a risk of overwhelming consumers with many different disclosures, particularly if every online trader has to repeat the same information13. It could notably result in minor changes among a vast similarity of terms drafting. Those changes are difficult to detect, even for the average consumer, which is particularly observant14. In my opinion, this standard does not reflect the degree of attention paid by the average person shopping online.
To avoid the assessment leading to negative findings regarding this sole criterion, it is desirable to restrict the scope of this thesis to the relation between Amazon acting as a seller and a consumer buyer.
An interesting element would be to assess whether this standard of average consumer is always realistic regarding the actual behave of someone shopping online.
As underlined by Scholar, even if the European Court refer to the average consumer in the assessment of the unfairness of contract terms15, the Unfair Contract Terms Directive does not include any explicit provision regarding the definition of consumer16. In my opinion, even though the standard of average consumer must be applied, it is not said that this standard has an exclusive nature regarding every other notion of consumer.
Similarly, the drafting of terms and conditions generally present a high level of complexity. According to a doctrinal finding, “to acknowledge problems with unfair terms in consumer contracts and possible conflicts with reasonable interests protected elsewhere (e.g., in
copyright law, data protection law, or media law), a certain level of legal expertise is required that many if not most consumers lack.”17.
Since those specific interests are assessed at the same time as the rest of terms and conditions by the unfairness test of the UCTD, they are submitted to the standard of average consumer
13 Luzak: Online Disclosure Rules of the Consumer Rights Directive: Protecting passive or Active Consumers? EuCML 2015, 79-88, 87
14 Preamble 18 of the Unfair Commercial Practice Directive
15 C-26/13 CJEU, 30 April 2014, Árpád Kásler and Hajnalka Káslerné Rábai v OTP Jelzálogbank Zrt ECLI:EU:C:2014:282 p.74
16 Eva Theocharidi Effectiveness of the ADR Directive: Standard of Average Consumer and Exceptions European Review of Private Law 1-2016: 103–116 p.112
17 N. Helberger & M. B. M Loos & Lucie Guibault & Chantal Mak & Lodewijk Pessers Digital Content Contracts for Consumers J Consum Policy (2013) 36:37–57 p.41
as well. In my opinion, It is not sure whether a term considered as fair would be understandable by a less observant consumer than this standard.
Realistically, Consumers generally have a rational disinterest in lengthy fine print18.
It may even be considered that “Consumers typically do not read or even access standard contract terms, but simply accept the applicability of the standard terms to the contracts they conclude, irrespective of their content or of the language in which the terms are drafted”19 According to those elements, it is accurate to question a term deemed as fair for an average consumer, if a potentially damaging situation still exist for consumers in practice.
In my opinion, having an operating platform that satisfies the requirements of Consumer law, regarding terms and conditions, does not ensure a desirable level of protection of the weaker party.
A consumer who doesn't read a term of use is generally not aware of his rights, and is more subject to be lured by a practice such as advertising in the case of the Apple Care Protection Plan20.
Traditional conceptions of consumer law would presume that the seller has the ascendant over the buyer, which remains in its posture a weaker party.
This presumption has been illustrated several times by the European Court case law21. Authors have established that the Directive’s system of protection assumes that the consumer is in a weak position vis-à-vis the trader about both her bargaining power and her level of knowledge22.
18 Carmen Appenzeller Towards a more effective regulation of unfair standard contract terms in Europe: of cartels, watchdogs and a “gorilla in the closet” EUCML issue 2/2017, 60 p.60
19 Marco Loos Double Dutch - On the role of the transparency requirement with regard to the language in which standard contract terms for B2C-contracts must be drafted EUCML Issue 2/2017, 54 p.57
20Mateja Djurovic The Apple Case: The Commencement of Pan-European Battle Against Unfair Commercial Practices ERCL 2013; 9(3): 253–266, 265
21 CJEU 21 March 2013, case C-92/11, ECLI:C:EU:2013:180 (RWE Vertrieb AG/Verbraucherzentrale Nordrhein-Westfalen eV), point 41; CJEU 30 April 2014, case C-26/13, ECLI:EU:C:2014:282 (Kásler and Káslerné Rábai/OTP Jelzálogbank Zrt), point 39
22 Marco Loos & Joasia Luzak Wanted: a Bigger Stick. On Unfair Terms in Consumer Contracts with Online Service Providers J Consum Policy (2016) 39:63–90
In my opinion, European consumer law was designed with the intention of increasing consumer confidence in cross-border shopping by avoiding scams and unprofessional behaviour. The imbalance between seller and buyer is even more accurate in a context of globalized, world-scale sellers, with dedicated legal services. Consumer law is presently used to challenge corporations that are powerful enough to be concerned by competition law. Under this perspective, the Unfair Contract Terms Directive can be an adapted instrument. This is especially true since its article 3(1) is targeting non-negotiated contracts, and assesses the significant imbalance between the parties’ rights and obligations. Terms and Conditions are accurate to assess through this Directive regarding the notion of non-negotiated contracts, Due to the size of a corporation such as Amazon, it is likely in my opinion, that the imbalance is even more significant than in traditional distant sales.
This thesis is based on the idea that European consumer law has shaped a paradoxical situation as to consumer protection. This idea will be illustrated through the standard, pre-formulated terms of a well known online platform, Amazon. Factually, this platform is notably acting as a direct seller to consumers, which removes the possible doubts regarding the quality of intermediary, currently existing with other platforms.
As it will be developed, there is little doubt that European consumer law provides strong incentives for the seller to comply with its requirements.
A focus on the Unfair Contract Terms Directive, notably targeting pre-formulated terms, is also accurate regarding the general criteria of the assessment provided, and the explicit mention of the requirement of plain and intelligible language.
The aim of this thesis is then to establish if an ideal situation may be reached for those consumers, through the requirements of the UCTD.
Under the present paradigm, the biggest risk for the consumer is not the lack of information, or incorrect information. In my opinion, the risk for consumer is rather to be lost among the high complexity of detailed and multiple sets of terms. On this basis, article 5 of the UCTD is an accurate instrument to assess the ability of a consumer to understand the matters at stake.
Preliminary to the analysis, it must be observed that every set of terms and conditions of Amazon targeting a different European Member State are drafted in a similar way. A very few elements are changing, such as a specification on data issues in the German set of terms due to the intense activity of its data protection authority. Since this exercise focus on a European scale exercise, the rare national differences are not relevant to assess. This exercise will use the UK set of terms, due to its availability in English language. Still, an analysis of the Irish set of terms would have led to similar issues
In my opinion, it is likely that the multiple set of terms23 used by a platform head towards compliance with legal requirement, rather than facilitating the understanding of real consumers.
I will examine whether European consumer law standards are efficiently adapted to the reality of consumer practices by using the example of Amazon’s terms and conditions.
The present assessment will consist in evaluating alternatively the following facts.
It must first be assessed whether the selected issues can be challenged by the UCTD. It must be established if the unfairness test effectively prevent set of terms from creating a damaging situation for consumers.
Then, if a term pass successfully the unfairness test, may it still in practice create a damaging situation for consumers ?
It matter presently to establish how to improve consumers’ rights compliance, which practices or terms can be considered at risk for a platform,
Are the standards provided by the Directive on unfair terms in consumer contracts adapted to Amazon contractual framework?
The Analysis will go through several aspects of the terms and conditions applying to a consumer doing shopping online, as delimited in the introduction.
At first, some issues related to the scope of the UCTD when applied to terms and conditions will be discussed (1). Then, the possibility to alter the consumer consent will be assessed (2). After analysing Amazon choice of law (3), a focus on trial periods (4) and the concerned terms will be made. The drafting of the term related to underage consumer will be issued through the case of In App Purchase (5). Data provision terms will then be assessed (6), as
23 The notion of “terms” refer to the presented above contractual framework of Amazon, including its Term of Use, Term of Sales, Privacy Policy, Amazon Prime Term of Use for digital contents, and its Delivery Conditions
well as terms related to conservation of data (7). Finally, the remaining issues of the privacy notice will be questioned (8), as well as Amazon liability terms (9).
1) Scope and context inherent to the Unfair Contractual Terms Directive
Contextually, the relationship between consumers and platform service providers is based on a large-scale adhesion to non-negotiated sets of terms.
In this perspective, the Unfair Contractual Terms Directive24 is likely to be one of the most suitable instruments to assess the respect by Amazon of European Safeguards regarding what a consumer is entitled to expect and accept in a contractual relationship.
The application of such protection is even more relevant regarding the reality of consumer degree of involvement in this relationship.
Legal scholars, also engaged in behavioural researches25, have underlined the fact that consumers typically do not read or even access standard contract terms, but simply accept the applicability of the standard terms to the contracts they conclude, irrespective of their content or of the language in which the terms are drafted.26 Despite this necessity of safeguards, several limitations must be taken in account on a set of Terms assessment through the UCTD.
In accordance with the European consumer law scope, the Directive did not enact a general obligation of fairness. Rather, it brought in a selective obligation in relation to particular forms of contract terms, those that were not negotiated27.
Yet, this impression that the consumer is “in control” in the negotiation process is deceptive, especially since he is accepting to pay a significant membership, in exchange of this personalization of the service.
Despite those potential obstacles, it is likely that, in the context of widely used, non-negotiated sets of terms, the application of the UCTD to Amazon’s contractual framework would be effective.
Those possibilities will presently be exposed.
24 Unfair Contract Terms Directive (Council Directive 93/13/EEC, OJ 1993, L 95/29)
25 Jan Trzaskowski Behavioral Economics, Neuroscience, and the Unfair Commercial Practices Directive J Consum Policy (2011) 34:377–392 , 388
26 Marco Loos Double Dutch - On the role of the transparency requirement with regard to the language in which standard contract terms for B2C-contracts must be drafted EUCML Issue 2/2017, 54 , 57
27 Mateja Durovic, The Subtle Europeanization of Contract Law: The Case of Directive 2005/29/EC on Unfair Commercial Practices European Review of Private Law 5-2015 [715–750] , 727
According to scholars, the UCTD apply to the relation between a platform service provider and a consumer through the notion of contract that is concluded between those parties. Particularly, the fact that the terms accepted intend to regulate this relation, and establish rights and obligations for the parties, allow to characterize the contractual nature of this relationship28.
The scope of assessment of the UCTD appears to be accurate in order to assess the compliance of its criteria compared to a set of non-negotiated terms.
According to the Van Hove decision29 of the ECJ, and as exposed by the doctrine30, when a national Court uses the UCTD for its assessment, “the nature, the full layout, and the conditions of the contractual framework of which it forms part should, according to the CJEU, be taken into account as well as the legal and actual context thereof”.
This would allow to take in consideration Amazon’s contractual framework as a whole, and to have a more accurate overview of the strength balance between platform and consumer.
It must also be stated that core terms, which could potentially be raised as an obstacle to the assessment of some of the terms, are assessable in so far as they may be considered as unclear and/or unintelligible31
In those circumstances, Amazon terms and conditions falls within the scope of the Directive on unfair terms in consumer contracts.
2) A discretionary power to alter the consumer consent
European consumer law is notably appreciating the unfairness of a term through some typical imbalance between rights and obligations. The concept of a unilateral advantage that a professional grants himself in a B2C relationship is characteristic of the methodology of European consumer law. The one-sidedness character of a term constitutes one of the criteria included in the list of terms referred at article 3(3) of the UCTD32. Though, it must be underlined that the list has a limited binding force due to the minimum level of harmonization of the UCTD. The preamble of the UCTD explicitly states that “for the purposes of this Directive, the annexed list of terms
28 Loos: Standard terms for the use of the Apple App Store and the Google Play Store EuCML 2016, 10-15, p.11 29 Van Hove, ECJ, 23/04/2015 C-96/14, ECLI:EU:C:2015:262
30 Heirman: Core terms: interpretation and possibilities of assessment (EuCML 2017, 30), 32 31 Heirman: Core terms: interpretation and possibilities of assessment (EuCML 2017, 30) p.33 32Unfair Contract Terms Directive (Council Directive 93/13/EEC, OJ 1993, L 95/29) article 3(3)
can be of indicative value only and, because of the cause of the minimal character of the Directive, the scope of these terms may be the subject of amplification or more restrictive editing by the Member States in their national laws”.
The list of terms is divided into two categories of presumed and always unfair, have been rejected from the final version in the Consumer Rights Directive. In this context, the list have an indicative value. Still, the list can be helpful in determining the imbalance in a relationship, which is unfair when significant according to Article 3, paragraph 1, of the Unfair Contractual Terms Directive.
In order to establish a potential significant imbalance in this respect, the interests at stake are worth being stated. An author have exposed that, on the consumer side, the ideal situation would be that the terms should not be changed at all, or should only be changed to his advantage. From a service provider’s perspective, being able to change the terms to react to market adjustments and external events, is an optimal situation, as acknowledged by the legislator. 33 The indication in the contract of certain reasons and methods concerning those amendments serve as a means of allowing a certain degree of flexibility for the provider, while allowing the consumer to gain in foreseeability on potential changes34.
According to the Annex I of the Directive, the possibility to unilaterally change a term without a detailed ground is potentially unfair35. Still, in the case where the seller is giving a “reasonable notice” to the consumer and informed him of the possibility to terminate the contract before applying those changes, the term may be considered as balanced and fair36.
The European Court of Justice has established, in the Kásler and RWE cases, that such a term may be fair if the consumer is provided with enough information on the modalities of the modification, as well as the right to terminate the contract regarding those information’s.
33 Candida Leone Transparency revisited – on the role of information in the recent case-law of the CJEU ERCL 2014; 10(2): 312–325 p.321
34 Op cit Candida Leone, p.321
35 Unfair Contract Terms Directive (Council Directive 93/13/EEC, OJ 1993, L 95/29) Annex I, paragraph 1 under (j),
36 Unfair Contract Terms Directive (Council Directive 93/13/EEC, OJ 1993, L 95/29) Annex I, paragraph 2 under (b)
This was established by the Court regarding article 3 and 5, as well as points 1(j) and (l) and 2(b) and (d) of the annex to Directive 93/13.
The court notably state that “it is of fundamental importance for that purpose, first, whether the contract sets out in transparent fashion the reason for and method of the variation of the charges for the service to be provided, so that the consumer can foresee, based on clear, intelligible criteria, the alterations that may be made to those charges and, secondly, whether consumers have the right to terminate the contract if the charges are in fact altered”37
Scholars have considered those rights to be effective when the consumer is able to foresee the consequences of the unilateral change38. Moreover, such a term may be fair only if the right to termination is given to the consumer and can be exercised effectively.
The effectiveness of the right to termination can be questioned regarding the modalities offered by Amazon.
According to scholars, even though those provisions are so far oriented to unilateral change practice related to price or costs39, they should be applicable to substantial change of other terms and conditions40, especially regarding the impact of such practice.
This doctrinal proposal would notably allow for a more suitable interpretation of the contractual balance between a consumer, simply visiting a website, and a platform. Factually, a consumer is exposed in this case to the Terms of Use of the platform. Since the mere access to an online platform is considered as “free”, which imply, not provided against a monetary payment. It is then accurate to assert whether this can be considered as constituting a contract.
In my opinion, the mere access to a platform should be considered as constituting a contract. For instance, the terms of use apply regardless of the purchase made through the platform. Similarly, no purchase is required for the collection of personal data as detailed in the privacy notice and the advertising policy. It has been
37 21 March 2013, case C-92/11, ECLI:C:EU:2013:180 (RWE Vertrieb AG/Verbraucherzentrale Nordrhein-Westfalen eV), point 49, CJEU 30 April 2014, case C-26/13, ECLI:EU:C:2014:282 (Kásler and Káslerné Rábai/OTP Jelzálogbank Zrt), point 73
38 Candida Leone Transparency revisited – on the role of information in the recent case-law of the CJEU ERCL 2014; 10(2): 312–325 p.321
39 op cit Candida Leone p.321
40 Marco Loos & Joasia Luzak Wanted: a Bigger Stick. On Unfair Terms in Consumer Contracts with Online Service Providers J Consum Policy (2016) 39:63–90 , 71
considered that the law does not prohibit an agreement providing for personal data as a counter-performance41. The same author has established that a performance promised in exchange for consent to process with personal data is therefore not gratuitous the action of providing data, such as during a mere visit to a website, can be apprehended as constituting a contract42.
It is also stated by the preamble of the UCTD that “Whereas contracts should be drafted in plain, intelligible language, the consumer should actually be given an opportunity to examine all the terms and, if in doubt, the interpretation most favorable to the consumer should prevail”. The first paragraph of the Privacy Notice explicitly states that “By visiting Amazon.co.uk, you are accepting and consenting to the practices described in this Privacy Notice”.
With this perspective, the most favorable interpretation for consumer protection would be to consider that the mere access to a platform amounts to a contract. This could be accepted even when the consumer ultimately does not buy through the platform, but simply visits pages, if it favors the consumer's protection.
In this perspective, a unilateral change of term by the platform could have important consequences on the consumer duties and obligations.
Those modification concerns are addressed in point 15 of Amazon’s Terms of Use and in point 9 of Amazon’s Terms of Sales43.
It turns out that Amazon’s approach of this question raise similar concerns as most other online platform, while including a few particular aspects.
Regarding Amazon’s modification clause in the Terms of Use, it is notably said that the right to modify applies to “every Amazon Service”, which implies than any set of terms used by Amazon may be changed validly through the acceptance of this single set of terms.
Another concern lays in the mention that those terms can be modified “at any moment”, which reinforce the impression for the consumer that this right of modification is unilateral and discretionary.
41 Langhanke/Schmidt-Kessel: Consumer Data as Consideration (EuCML 2015, 218), p.224 42 Op cit Langhanke/Schmidt-Kessel p.224
The most problematic part of the terms of use comes from the condition of application of the modification. No mention is made of a right for the consumer to accept or refuse those modifications, which is going against the requirement of Annex I of the Directive as previously discussed. Due to the indicative value of the list mentioned article 3(3), this constitute a model on which National Courts can base themselves to consider a term as unfair.
Instead, the modifications are said to be applicable to the consumer at the moment where he is using Amazon’s services. In this context, the mere fact of going on Amazon’s website imply de facto an acceptance of the Terms of Use modifications, while no opportunity is given to the consumer to accept or even read what is changing.
Similarly, when a new version is edited, it doesn’t mention which points have been changed from the previous one. Identifying Amazon’s modification of terms would then require a comparison of the updated and the former version of the terms, which is provided at the top of the set of terms. It can be considered is that the average consumer is likely not to do such a laborious exercise, and consequently, to be informed of what is changing.
This modification policy also raises contextual problems. The platform states that in case of inapplicability or nullity of one of the modified terms, there is no impact on the applicability of the remaining terms.
Even though the applicability of the remaining terms is in line with article 6 of the UCTD, this situation is problematic for consumers on the following basis.
According to Amazon’s Terms of Use, a term modification is accepted by a mere use of the website. This is problematic since, in practice, a consumer is only given the possibility to knowingly agree to the terms and conditions during the creation of an account or during a purchase. In my opinion, it is unlikely that a consumer will read the Terms of Use at every visit of the website.
The UCTD preamble explicitly states that the consumer should be given the opportunity to examine all the terms as to the requirements of plainness and intelligibility. In my opinion, his modified policy is creating a damaging situation in relation to consumer consent.
Factually, any terms that a consumer has agreed to may be replaced by a potentially unfair new term. In the same time, the platform only bears the risk to have this specific term inefficient. This possibility to modify a term while bearing a limited risk, in my opinion, hinder the value and the reality of consumer consent.
Amazon’s modification policy included in its terms of sale is nearly identical, except for a specific point that is worth being underlined.
Modifications are said to be accepted once performing a purchase, except in case of “mandatory requirement by an administrative or governmental authority”, which would apply retroactively.
Article 1(2) of the UCTD states that mandatory provision terms are excluded from the application of the Directive. However, it may be considered that their existence is mentioned without any further details, except for their retroactive nature. This hinders both the understanding and the reliability of the terms. In my opinion, information on mandatory provision may gain in comprehensibility. Notably, by providing examples of the terms that are likely to be modified by “mandatory requirement by an administrative or governmental authority”. However, the UCTD has little influence on this term, which is explicitly excluded from its scope.
This drafting is also present in Facebook’s Terms of use44. According to scholars, “simply stating that changes of the standard terms and conditions are possible in accordance with applicable national law is not sufficient”45.
According to their findings, “conditions for adjusting contractual provisions will need to be spelled out in the contract or in the standard terms and conditions themselves”. They also spelled out that informing the consumer at a later time during the contractual performance would not remedy the breach. Even though this reasoning was applied to price modification, it can be used in the present case to characterize the unfairness of this term, in my opinion. According to the UCTD preamble, plain, intelligible language means that “the consumer should actually be given the opportunity to examine all the terms”. In my opinion, this lack of
44 https://www.facebook.com/terms
45 Marco Loos & Joasia Luzak Wanted: a Bigger Stick. On Unfair Terms in Consumer Contracts with Online Service Providers J Consum Policy (2016) 39:63–90 p.73
foreseeability would presently induce a breach to the requirement of plain and intelligible language.
In my opinion, a way to increase the foreseeability as to terms modification could be to display information on which terms are the most likely to be modified. An efficient way to ensure the reality of consumer acceptance would be to require a new reading of the Terms of Use at each modification, instead of considering that using the website constitute acceptance of them.
3) Amazon policy regarding choice of law
Amazon’s choice of law provision potentially implement European consumer law concerns. It notably establish a non-exclusive jurisdiction, allowing to “enforce your consumer protection rights in connection with these Conditions of Use in Luxembourg or in the EU country in which you live”. Though, it is not sure whether this term would pass successfully the unfairness test. The reasons why will presently be detailed.
Through a quick review of point 14 of Amazon terms of use, a non-exclusive jurisdiction is given to a Member State Court, and it is expressly mentioned that the user can rely on his consumer rights, whether in Luxembourg or in his residence country.
At first, Amazon policy appears to be more suitable for European concerns than the average practice through Platform Service Providers regarding choice of law terms. For instance, Google’s practice were to grant jurisdiction to a non-Member State Courts while mentioning an exception for countries where “this provision is not applicable”46.
As Scholars have demonstrated, this could lead a consumer to believe, for instance, that their national court is not competent to deal with a claim, and for that reason to abstain from pursuing her claim.47
Despite the express mention of European consumer rights, some elements are potentially problematic in Amazon choice of law term.
46 https://www.google.com/intl/en-GB/policies/terms/ “About these Terms”
Those concerns have been confirmed in a recent case of the European Court opposing a Consumer Protection Association, VKI, and Amazon SARL, which concern their choice of law term48.
The fourth question addressed to the Court concern the possibility for Amazon to establish the applicability of Luxembourg law for any litigation.
The affirmation of this choice of law over a European Member State, balanced with the express reference to consumer right and the jurisdiction of the consumer court, would primarily lead to consider this term as fair.
Still, from the perspective of the UCTD, and according to paragraph 71 of the court’s judgment, “Article 3(1) of Directive 93/13 must be interpreted as meaning that a term in the general terms and conditions of a seller or supplier which has not been individually negotiated, under which the contract concluded with a consumer in the course of electronic commerce is to be governed by the law of the Member State in which the seller or supplier is established, is unfair in so far as it leads the consumer into error by giving him the impression that only the law of that Member State applies to the contract”49.
It must be stated that this term layout has been amended since 201250. Amazon presently complies with the requirements of the fairness test. However, this point is worth being underlined regarding the recent nature of the case. According to article 4(1) of the UCTD, the unfairness of a term must be apprehended at the date of agreement of the contract, regardless of its future evolution. This provision may justify the inclusion of this analysis despite the actual compliance of the term with the UCTD.
Additionally, This decision is offering further clarification on how to apprehend a term which doesn’t ostensibly challenge Consumer law principles. As stated in the introduction, one of the relevant challenges regarding Platform Service Providers is located in the global implementation of European consumer law in order to ensure a safe conduct of business while maintaining a strength balance favourable to their activities.
48 Case C-191/15 Verein für Konsumenteninformation v Amazon EU Sarl, 28/07/2016, C-191/15, ECLI:EU:C:2016:612
49 Case C-191/15 Verein für Konsumenteninformation v Amazon EU Sarl, 28/07/2016, C-191/15, ECLI:EU:C:2016:612 paragraph 71
50 Case C-191/15 Verein für Konsumenteninformation v Amazon EU Sarl, 28/07/2016, C-191/15, ECLI:EU:C:2016:612 paragraph 30
According to authors, two major clarifications51 are to be drawn from this case law where Amazon's terms have been considered unfair.
A choice of law clause is not unfair per se but only due to "specific characteristics inherent in its wording or context" comprising, in particular, with non-compliance of "the requirement of being drafted in plain and intelligible language" as demanded for by Art. 5 Unfair Contract Terms Directive. The CJEU considers it to be crucial that the consumer is informed about the applicability of the mandatory consumer protection laws of his/her state of residence52.
Another potential problem, which hasn’t been addressed so far, concerns the overlap factor between the diverse terms related to the applicable law through Amazon contractual framework.
Even though the choice of law terms in the terms of sale is fully reproduced in the terms of use, this last set include some additional reference to two online arbitration services; a national and a European one.53
Regarding the absence of binding nature for those services, and the European incentives to use alternative dispute resolution, it is unlikely that this would render the term unfair. In my opinion, a consumer often have more interest in using alternative dispute resolution mechanism regarding the average length of judiciary claims and the amount claimed, generally low.
In those conditions, there is presently no damaging situations for a consumer in this term drafting.
A more problematic aspect lays in the privacy notice, where those concerns are addressed under the privacy shield section. Regardless of the validity of this international agreement between Europe and the United States after the invalidation of the Safe Harbor through the Schrems case54, it presently raises issues from a Consumer Law perspective.
In a prospective way, it could be considered that the layout of this term refers to a choice of law term, since it addresses “reclamation and complaint” issues.
51 Case C-191/15 Verein für Konsumenteninformation v Amazon EU Sarl, 28/07/2016, C-191/15, ECLI:EU:C:2016:612 paragraphs 67 to 69
52 Müller: Amazon and Data Protection Law – The end of the Private/Public Divide in EU conflict of laws? (EuCML 2016, 215), 218
53 Annex Term of Use pt.8 « Applicable law »
54 Marx/Wüsthof: CJEU shuts down Safe Harbor for Transatlantic Data Transfer – Case C-362/14 Maximilian Schrems v Data Protection Commissioner EuCML 2015, 242-246, 246, Maximillian Schrems v Data Protection
In this perspective, Amazon is referring to its certification by a non-European Authority, the FTC, and an international agreement.
In my opinion, some similarity can be raised with the reasoning of article 1(2) of the UCTD, regarding mandatory provisions terms.
It may be considered that a mere mention of the existence of the certification body, without any further details, globally hinders the understanding of the terms.
In my opinion, information on mandatory provision may increase in comprehensibility. It may notably provide more detailed explanation on how data protection is enforced by this non-European authority. This could be accurate is so far as they doesn’t necessarily operate the same way as the European data protection authority.
A choice of law term, is at risk of being considered unfair regarding the lack of plainness and intelligibility of the term as drafted by the UCTD.
Factually, the risk is for consumers to be led to think that their rights are not based on the European Directives, and that a non-European Governmental body, the FTC, is to assess the conformity of Amazon practices.
This perspective is likely to be considered as infringing the requirements of article 5 of the UCTD, especially since data related concerns were addressed and ruled by the European Court of Justice in the VKI against Amazon procedure55 mentioned above.
Additionally, no reference is made in this term to the consumer national court jurisdiction, or even to any court jurisdiction at all. Instead, a litigation service based in the United States, TRUSTe, is mentioned to address litigation that haven’t been resolved by Amazon itself. Despite the “independent and free of charge” character of those services, it could be considered that this term is misleading a consumer who intend to take action, since he would also be entitled to access his national court.
A term who may led a consumer to think that non-European standards may apply to the processing of data, is problematic regarding article 5 of the Unfair Contract Terms Directive. Displaying further information’s on the standards used and the potential difference with a similar activity in the European Union may be desirable to reach the requirement of plain and intelligible language.
55Case C-191/15 Verein für Konsumenteninformation v Amazon EU Sarl, 28/07/2016, C-191/15, ECLI:EU:C:2016:612
4) A focus on trial periods
According to article 5 of the Unfair Contractual Term Directive, a term must notably be drafted in a “clear and intelligible manner”. Striking resemblance between the requirements of both Directives holds out the prospect that this term would be similarly declared unfair under the UCTD fairness test.
European guidelines are advocating for a joint appreciation of commercial practices and contractual terms as to their unfairness in the Kásler decision56.
It stems from the decision that national courts are now allowed to use a model of a reasonably well-informed, reasonably observant, and circumspect consumer, as a benchmark for the verification whether a contract term has been drafted in a plain, intelligible manner57.
It is then possible, since the Kásler case, to take in account criteria related to the assessment of unfairness of the UCTD when characterizing unfair commercial practices in a UCPD context.58.
During the Perenič & Pereničová case59, the Advocate General have established a similar closure between the assessment of practice and terms in point 124 of her Opinion. It is stated that the possible qualification of a commercial practice as ‘unfair’ in accordance with the criteria set in Directive 2005/29 should be considered in the assessment of the unfair nature of a contractual term. This juncture is notably justified by an explicit reference, in the same paragraph, to the requirement of good faith enshrined in Article 3(1) of Directive 93/13.
Similarly, the preamble of the UCTD underlines the necessity to protect consumers against the abusive exclusion of an essential right in contracts. In the context of free trials, the effective possibility to withdraw from a trial worth being questioned by the unfairness test.
56 Kásler v OTP Bank, CJE, 30/04/2014 C-26/13, ECLI:EU:C:2014:282
57 Mateja Durovic, The Subtle Europeanization of Contract Law: The Case of Directive 2005/29/EC on Unfair Commercial Practices European Review of Private Law 5-2015 [715–750] , p.722
58 Op cit, Mateja Durovic, p.721
59 Case C-453/10, Jana Pereničová & Vladislav Perenič v SOS financ spol. s r. o. ECLI:EU:C:2012:144 paragraph 43
From the perspective of the UCPD as stated in article 5(2)(b), a practice is unfair when it materially distorts, or is likely to materially distort, an economic behaviour of a consumer or the average member of a group.
In the context of free trials, through the constant incentive of free shipment, one of the most immediate advantages of the premium services, Amazon is at risk of provoking an economic distortion in the consumers’ mind, which would probably not choose this option if aware of the payment modalities implied behind this offer.
It was stated by researchers, based on statistics, that an average 5% of users are reading terms and conditions of online platform service providers when accepting them60.
In this context, it is likely that a consumer would not read in a detailed enough way the premium set of terms to be aware of the consequences of a trial. This is especially true since those terms are presented as an accessory to the main set of terms of Use and Sales of the platform, which constitute a minimum of 5 set of terms to read61.
Problematically, the standard of the average consumer used to assess the unfairness of a clause requires the consumer to have an understanding reading of the terms. This is problematic in view of a potential discrepancy between the concept and the reality of consumer attention.
Scholars have led experiments to apprehend how consumer concretely read terms and conditions62. The part of consumers that would read the terms would probably do it in a transversal way, and would not reflect much on consequences that are not explicit. This study notably expose that, when 19% of a group of consumer access a terms and conditions, the two third of them spend very little time reading the set of terms63, which imply a transversal reading.
Regarding the practice as a whole, and as argued, This term is in line with the standard of the Average consumer, which is supposed to read comprehensively a set of terms. However, In
60 Mitja Kovač & Ann-Sophie Vandenberghe Regulation of Automatic Renewal Clauses: A Behavioral Law and Economics Approach J Consum Policy (2015) 38:287–313, 288
61 Since terms of use and sales include the privacy notice as well as the cookies and advertising policy. 62 Marco Loos Double Dutch - On the role of the transparency requirement with regard to the language in which standard contract terms for B2C-contracts must be drafted EUCML Issue 2/2017, 54, 58
63 Elshout, Maartje and Elsen, Millie and Leenheer, Jorna and Loos, Marco and Luzak, Joasia, Study on Consumers’ Attitudes Towards Terms Conditions (T&Cs) Final Report (September 22, 2016). Page 89
my opinion, some damaging situation are still possible for consumer in practice. The fact that this free trials is offered at each purchase, and until recently, without any explicit mention of the price when accepting a purchase.
It stems from those elements that a consumer which subscribe a free month trial have the obligation to pay a yearly subscription, in as long as he doesn’t take active steps to withdraw the offer in appropriate time.
Amazon could adapt its terms related to trials, by displaying more visible information on the consequences inherent to the trial. The information, summed up and easily accessible, should be mandatorily scrolled down before being able to accept the services.
It must be stated that Amazon have adapted its presentation of free trials during the writing of this thesis, by displaying explicitly the price of the yearly membership that would apply after a month. Still, According to article 4(1) of the UCTD, the unfairness of a term must be apprehended at the date of agreement of the contract, regardless of its future evolution. In my opinion, This provision may justify the inclusion of this analysis despite the actual compliance of the term with the UCTD. Since the information displayed on Amazon’s website can be interpreted in determining the unfairness of a term, this analyse of Amazon’s trial policy is relevant.
5) A focus on In App Purchase
A term that could be deemed as not being written in plain and intelligible language64 concerning in app purchases had the platform convicted in the US65.
Since the structure of the service is similar in Europe, it is worthy to mention briefly freemium games, another variant of deceptively free offering. It is even more accurate since the FTC estimates the total customer injury in the US as $26,242,025.30. (Dkt. No. 183 at 2.)66. Since Europe has most likely not been spared by this practice, it could be desirable to be solved under European law.
In-App purchases may be described as an acquisition made from within a mobile application, typically in order to access special content or features in an app. The purchasing process is completed directly from within the app and is seamless to the user in most cases, with the
64 Unfair Contract Terms Directive (Council Directive 93/13/EEC, OJ 1993, L 95/29) Article 5
65 Case 2:14-cv-01038-JCC Document 274-36 Filed 07/22/16 Federal Trade Commission V Amazon.co.inc https://www.ftc.gov/system/files/documents/cases/160427amazonorder.pdf
mobile platform provider facilitating the purchase and taking a share of the money spent (usually in the range of 30% or so), with the rest going to the app developer67.
The suit was made regarding the possibility, into free game applications, to perform in app purchase incurred by children “without having obtained the account holders’ express informed consent”68
It must be noted that, in point 17 of Amazon’s Terms of Use, a specific chapter is dedicated to Amazon policy regarding children. It is explicitly stated that Amazon « do not sell products for purchase by children. »69. Still, many game application are more or less explicitly addressed to an underage public, and are presented as free. As underlined in the definition above, the purchase is « seamless to the user in most cases », which constitute a distortion of the economic behaviour of the user. Factually, the distortion is created by the nature of freemium game themselves, where progressing in the scenario without In App Purchase is often impossible. The pay-to-win nature, corroborate with the absence of requirement for the underage consumer to enter banking details to purchase, are creating the distortion.
It is not sure whether point 17 of Amazon’s Terms of Use would comply with the requirements of article 4(1) and 5 of the UCTD.
Regarding article 4(1), the unfairness of a term should be appreciated regarding all the circumstances attending the conclusion of the contract. According to article 5 of the UCTD, terms offered in written form must always be drafted in plain, intelligible language. In the present case, the adult consumer is not informed that a child playing a game obtained through his account can perform purchase. On this, the first part of the term, where Amazon state that “We do not sell products for purchase by children” doesn’t presently meet the requirement of plain language.
From those elements, it could be advised to Amazon to display more visible information on the « freemium » nature of the applications, such as a warning that further monetary purchase can be made during the game. Allowing the holder of the account to disactivate in app purchase, and impose stricter ways to control payment into the application, would be desirable
67 http://www.webopedia.com/TERM/I/in-app_purchase.html
68 Case 2:14-cv-01038-JCC Document 274-36 Filed 07/22/16 p.10 point 11-12 69 Annex Terms of Use pt 17 Children
6) The fairness of the data provision terms
The involvement of European consumer contract law in Privacy matters is justifiable on several grounds.
First of all, a crucial element for a Platform Service Provider, which is to initiate a private legal order, is to be trusted by consumers. According to the authors, this credibility of PayPal, between other examples, was founded on the protection of its users from fraud and security mishaps70.
A major Aim of European Directives regarding consumer law is indeed to foster cross border transaction through an increase of the trust of consumers, this confidence being assured by mechanisms such as the withdrawal right.
A first glance on the effectiveness of consumer law Directives regarding the use of data may be viewed as the potential inadequacy of Consumer law to deal with data related matters. As a matter of fact, the Directives mostly apply in the context of an operation of Sale or Services, which imply a professional provider and a consumer receiver. As will be developed further, the monetary payment provided by the consumer remains the main triggering aspect to the application of the Directives.
Yet, the rules on data protection and privacy do not aim to foster the fairness of bargains that include the consumers’ personal data, while consumer contract law deals with those pre-conditions of fairness of bargains and their enforcement. From this point, and according to the authors71, Contract law is the right place to deal with the economic value of consumers’ personal data.
For this reason, the economic preferences of consumers’ fall within the scope of Consumer law, and reveal the accurate nature of this assessment for this paper.
The fact that the Privacy Notice can be characterized as part of the Terms & Conditions of a platform also allows to assess them, notably by the use of the unfairness tests. The notion of payment through data is another argument to apply the Unfair Contractual Terms Directive 72.
70Agnieszka Janczuk Gorywoda Online Platforms as Providers of Transnational Payments Law European Review of Private Law 2-2016 [223–252]p.237
71 Langhanke/Schmidt-Kessel: Consumer Data as Consideration EuCML 2015, 218, 219
The principal points of uncertainties regarding the UCTD and Amazon’s data related activities concerns the consent to data process, the practices of conservation of data, and the structure of the privacy notice itself.
A consumer which is not made aware of a process is less likely to challenge it. As a matter of fact, internet users are often unaware of the cookies’ use and have no control over them, which may lead to the infringement of users’ online privacy73.
In this perspective, it is relevant to assess whether processing of data by Amazon is stated in a plain and intelligible language, according to article 5 of the UCTD
Regarding Amazon contractual framework, information on cookies can’t be found inside the Privacy notice, where a URL is made to an independent list of terms. The fact that the privacy policy of Amazon is separated in two documents does not foster clarity for the consumer, especially regarding the complex nature of the notions present in those documents. According to article 4(1) of the UCTD, other terms in the same contract or in a related contract must be taken in account to establish the unfairness of a term. When article 4(1) and (5) of the UCTD are appreciated together, the present situation is likely to be deemed as unfair. To be fully aware of the information provided on data processing, a combined lecture of two set of terms is required. A separate list of examples of data processing is supplied in the Privacy Notice, imply an additional document to read. This situation is a relevant example, in my opinion, of a situation where the consumer is overwhelmed by too much information, which rather aim to comply with mandatory requirements rather than being intelligible for a consumer. On the specific issue of privacy in terms and conditions, scholars have established that “in order to acknowledge problems with unfair terms in consumer contracts and possible conflicts with reasonable interests protected elsewhere (e.g., in copyright law, data protection law, or media law), a certain level of legal expertise is required that many if not most consumers lack.” 74
From those elements, regarding the complexity of the terms written and the necessity to apprehend several sets of terms at the same time, it is likely that Amazon’s terms related to data processing would be considered as unfair regarding articles 4(1) and 5 of the UCTD. It seems that, as often, “the devil is in the detail”. Along with the detailed version required to comply with the requirements of European Consumer Law, a simplified version would
73 J. A. Luzak Privacy Notice for Dummies? Towards European Guidelines on How to Give “Clear and Comprehensive Information” on the Cookies’ Use in Order to Protect the Internet Users’ Right to Online Privacy J Consum Policy (2014) 37:547–559, 547
74 N. Helberger & M. B. M Loos & Lucie Guibault & Chantal Mak & Lodewijk Pessers Digital Content Contracts for Consumers J Consum Policy (2013) 36:37–57, p.39
benefit to consumers consent by giving them a reachable opportunity to understand the matters at stake.
From a Consumer law perspective, the structure of Amazon’s cookies policy is problematic in terms of consumer consent.
To comply with privacy standards, Amazon release information on the possibility for a consumer to prevent the application of cookies75. Amazon merely refer to “help features on most browsers”, and direct to them for further explanation. The absence of a dedicated service for Amazon Cookies, similarly to the Advertising Preferences76, means that data will keep on being gathered even if their processing can be refused in the Advertising Preferences.
Even though the possibility to refuse cookies is explained to the consumer in the Cookies Policy, the cookies function is by default activated for any users, and requires some active steps from the consumer in order to refuse them. This element must be taken in account while assessing the fairness of the term stating the role of cookies according to article 4(1) of the UCTD. Two cases of figure, relevant regarding this article, are displayed at the beginning of the advertising policy. On the one hand, when a consumer simply visits Amazon website, he hasn’t been given the opportunity to consent to either the terms of Use or the other set of terms. On the other hand, when a consumer is contracting with Amazon, the Terms of Use and Sales are displayed to him, while the advertising policy is accessible through a short link. According to article 3(1) of the UCTD, in correlation with article 4(1), this could create a significant imbalance between the rights and obligation of the parties. This could be the case since, in my opinion, a mere visit imply the obligation to provide data through technical means, before the consumer is even able to assess the fairness of the bargain, and to decide to agree or decline it. Therefore, consumer law is the right place to assess this privacy issue.
This practice, which could be considered as a threat for consumer consent, can be correlated with the relative unawareness of consumers regarding data process practices.
In this perspective, consent shouldn’t be considered as given by a mere use of the website, regarding some specific data practices. Those terms are present in a different document than
75 Annexe privacy Notice point 5 76 Annexe Privacy Notice point 4
that of the Terms and Conditions, accessible only through a URL. There should then be a formal information about the processing of data displayed on Amazon’s website. This would be accurate since the consumer is not offered otherwise to agree to a Terms of Use that apply regardless of consumer agreement.
7) Amazon policy regarding conservation of data
A major threat for consumer protection in Amazon Privacy Notice lies in the absence of precision regarding the possibility for the consumer, in case of withdrawal, to retrieve a real balanced situation with the platform, which gathers and stores data.
According to Scholars77, the right of withdrawal is correlated by the European notion of Right to be forgotten, which scope has been determined by the famous case Costeja c/ Google Spain78. On this bases, European consumer law is relevant to question data conservation issues.
On this basis, the consumer should be allowed, to terminate their relationship with Amazon by a refusal to a modification of terms, for instance.
Yet, Amazon contractual framework doesn’t mention this possibility, and parts of it seems to imply the contrary.
First of all, the Privacy Notice clearly states that the data collected by Amazon regarding its users, which covers every action of the consumer79, are parts of Amazon Business Assets80, which imply that Amazon have no intention to allow the Consumer to have the data communicated to the Platform returned and erased from its database.
Several authors have considered the action of providing data as a form of payment. Instead of monetary payment, consumers pay with their personal data, which is collected either explicitly through registration forms, tacitly through sharing personal information on social network sites, or secretly via cookies81. This apprehension of data’s value has been explained by the doctrine. According to a scholar finding. A performance promised in exchange for consent to process with personal data is not gratuitous. There is a valuable consideration,
77 Langhanke/Schmidt-Kessel: Consumer Data as Consideration EuCML 2015, 218, p.221
78 Google Spain SL and Google Inc v Agencia Española de Protección de Datos (AEPD), Mario Costeja
González [2014] ECLI:EU:C:2014:317, ECJ, C-131/12, 13/05/2014
79 Annex Privacy Notice: “Data We collect” 80 Annex Privacy Notice “Buisness Assets”
81 M. B. M. Loos, N. Helberger, L. Guibault, C. Mak, ‘The regulation of digital content contracts in the optional instrument of contract law’, European Review of Private Law 2011/6, pp. 750, 756-757, Marco Loos: Standard terms for the use of the Apple App Store and the Google Play Store EuCML 2016, 10, 11
