29
under- performance and impose limitations on how service credits can be
used (Bradshaw et al. 2011).
As discussed above, CSPs may try to achieve such limitations on their
liability by specifying a preferential jurisdiction in the TOS. For example,
US courts have enforced such limitations on liability for click-wrap agreements (see, for example, Treiber & Straub, Inc. v. United Parcel Service,
Inc.). Given that the research referred to above suggests that consumers
are not aware of the detail of the contracts they are agreeing to, and if they
were, for the most part would still proceed, authors have suggested that
the US courts should rejuvenate the doctrine of unconscionability to help
cloud clients avoid waiving important legal rights (Calloway 2012).
Notwithstanding this, EU law provides some protection against the exclusion of liability (see GB Gas Holding v Accenture). For individual consumers, the EU Unfair Terms Directive (Directive 93/13/EC) requires that
contracts must be drafted in such a way to prevent the imposition of terms
prejudicial to consumer rights. It introduces the notion of "good faith" in
order to prevent significant imbalances in the dealing of consumers and
suppliers. Article 5 of the Directive requires contract terms be drafted in
plain and intelligible language and states that ambiguities will be interpreted in favour of consumers. Similarly, the EU Consumer Rights
Directive (Directive 2011/83/EU) highlights the requirement for suppliers to provide specific information in a “clear and comprehensible manner.” It also provides formal requirements and withdrawal rights for
distance contracts. In 2022, new protections for consumers will be introduced as part of the Digital Content Directive (Directive 2019/770/EU)
when they purchase digital services or digital content, or particularly relevant in the case of cloud services, when they exchange personal data that
goes beyond the minimum necessary to provide the service. As a final
comment, in Europe, data protection is a fundamental right set out in
Article 8 of the EU Charter of Fundamental Rights. Article 82 of the
GDPR provides for compensation for persons suffering damage due to
unlawful processing or of an act incompatible with national data protection law.
2.4.3
Acceptable Use Policies
AUPs are typically incorporated or referenced in the TOS, and are used by
CSPs, nominally, to protect themselves in the event of misconduct by their
client, and their clients’ end users. In effect, AUPs set out a largely homogenous list of prohibited activities and behaviours and the consequences for
2 DEAR CLOUD, I THINK WE HAVE TRUST ISSUES: CLOUD COMPUTING…
under- performance and impose limitations on how service credits can be
used (Bradshaw et al. 2011).
As discussed above, CSPs may try to achieve such limitations on their
liability by specifying a preferential jurisdiction in the TOS. For example,
US courts have enforced such limitations on liability for click-wrap agreements (see, for example, Treiber & Straub, Inc. v. United Parcel Service,
Inc.). Given that the research referred to above suggests that consumers
are not aware of the detail of the contracts they are agreeing to, and if they
were, for the most part would still proceed, authors have suggested that
the US courts should rejuvenate the doctrine of unconscionability to help
cloud clients avoid waiving important legal rights (Calloway 2012).
Notwithstanding this, EU law provides some protection against the exclusion of liability (see GB Gas Holding v Accenture). For individual consumers, the EU Unfair Terms Directive (Directive 93/13/EC) requires that
contracts must be drafted in such a way to prevent the imposition of terms
prejudicial to consumer rights. It introduces the notion of "good faith" in
order to prevent significant imbalances in the dealing of consumers and
suppliers. Article 5 of the Directive requires contract terms be drafted in
plain and intelligible language and states that ambiguities will be interpreted in favour of consumers. Similarly, the EU Consumer Rights
Directive (Directive 2011/83/EU) highlights the requirement for suppliers to provide specific information in a “clear and comprehensible manner.” It also provides formal requirements and withdrawal rights for
distance contracts. In 2022, new protections for consumers will be introduced as part of the Digital Content Directive (Directive 2019/770/EU)
when they purchase digital services or digital content, or particularly relevant in the case of cloud services, when they exchange personal data that
goes beyond the minimum necessary to provide the service. As a final
comment, in Europe, data protection is a fundamental right set out in
Article 8 of the EU Charter of Fundamental Rights. Article 82 of the
GDPR provides for compensation for persons suffering damage due to
unlawful processing or of an act incompatible with national data protection law.
2.4.3
Acceptable Use Policies
AUPs are typically incorporated or referenced in the TOS, and are used by
CSPs, nominally, to protect themselves in the event of misconduct by their
client, and their clients’ end users. In effect, AUPs set out a largely homogenous list of prohibited activities and behaviours and the consequences for
2 DEAR CLOUD, I THINK WE HAVE TRUST ISSUES: CLOUD COMPUTING…