vTech – ignorance is no defence (and neither are weasel words)

skeptic dog
This morning, Troy Hunt published a blog post alerting to a recent change in the Terms & Conditions published by children’s toy manufacturer vTech. The changes are truly astonishing, take a look at the Limitation of Liabilities clause for yourself.
You may remember that vTech were breached in November last year losing the personally identifiable information not only of adults (4.8M parents), but also 6.8M children.
What do you do as a response to this kind of disaster? Well apparently, you update your Terms & Conditions to include the egregious text (the red is mine)
7. 	Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SITE AND ANY SOFTWARE OR FIRMWARE DOWNLOADED THEREFROM. YOU ACKNOWLEDGE AND AGREE THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SITE MAY NOT BE SECURE AND MAY BE INTERCEPTED OR LATER ACQUIRED BY UNAUTHORIZED PARTIES. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND ANY SOFTWARE OR FIRMWARE DOWNLOADED THEREFROM IS AT YOUR OWN RISK. RECOGNIZING SUCH, YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER VTECH NOR ITS SUPPLIERS, LICENSORS, PARENT, SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, AGENTS, CO-BRANDERS, OTHER PARTNERS, OR EMPLOYEES WILL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER TANGIBLE OR INTANGIBLE LOSSES OR ANY OTHER DAMAGES OR LOSS BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY (EVEN IF VTECH HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE SITE OR SOFTWARE OR FIRMWARE DOWNLOADED THEREFROM; THE USE OR THE INABILITY TO USE THE SITE; UNAUTHORIZED ACCESS TO OR ALTERATION OR DESTRUCTION OR DELETION OF YOUR TRANSMISSIONS OR DATA OR DEVICE; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITE; ANY ACTIONS WE TAKE OR FAIL TO TAKE AS A RESULT OF COMMUNICATIONS YOU SEND TO US; HUMAN ERRORS; TECHNICAL MALFUNCTIONS; FAILURES, INCLUDING PUBLIC UTILITY OR TELEPHONE OR INTERNET OUTAGES; OMISSIONS, INTERRUPTIONS, LATENCY, DELETIONS OR DEFECTS OF ANY DEVICE OR NETWORK, PROVIDERS, OR SOFTWARE; ANY INJURY OR DAMAGE TO COMPUTER EQUIPMENT; INABILITY TO FULLY ACCESS THE SITE OR ANY OTHER SITE; THEFT, TAMPERING, DESTRUCTION, OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ENTRIES, IMAGES OR OTHER CONTENT OF ANY KIND; TYPOGRAPHICAL, PRINTING OR OTHER ERRORS, OR ANY COMBINATION THEREOF; OR ANY OTHER MATTER RELATING TO THE SITE OR THE SOFTWARE OR FIRMWARE DOWNLOADED THEREFROM. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, VTECH'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO PURCHASE A VTECH DEVICE OR SOFTWARE.

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you.
This  limitation of liabilities clause in their T&Cs is incredible! Here is a selection of words I would use to describe it; outrageous, unforgivable, ignorant, opportunistic, and indefensible.
The correct response to a breach of the scale that  vTech recently suffered, particularly in light of the ease with which it was achieved, is to learn from your mistakes, to improve security and security practices, and to apologise to the true victims of the breach; your customers.
vTech appear to have learned only that they have a legal liability to protect consumer data, sensitive data of children and parents, MY data and that and my own children in fact. And that a failure to fulfil that obligation may result in substantial costs to the business. As a (former) customer of vTech I can say with certainty that these new T&Cs have not been communicated to me.
With this clause vTech appear to be attempting to completely absolve themselves of responsibility when it comes to protecting customer data,. The only possible motivation for inclusion of a clause such as this could be to attempt to take advantage of their customer’s ignorance of the law, to attempt to brush aside consumer complaints in the event of a breach. This is not only morally unacceptable, it would also be struck down as a defence by any European court and in fact I would not be surprised if they were obliged to remove this clause from their T&Cs within the EU by national data protection agencies.
vTech, and every other entity that collects, stores or processes personally identifiable information has a legal obligation to protect personal data against accidental or unlawful destruction, loss, alteration and disclosure, particularly when processing involves data transmission over networks. The more sensitive that data, the greater the duty of care and no amount of clauses in a T&C “agreement” will change that.
Would I advise consumers to avoid an organisation that attempts to take advantage of its customers goodwill and to absolve itself of its legal responsibilities with weasel words? Unequivocally, yes.

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