Are there lessons from copyright law that can be applied to privacy law? Isn’t there a need for certain “rights” that can’t be overridden by contracts in the shape of terms of service.
I believe that individuals should have a basic set of unambiguous & meaningful rights. They should be rights with real teeth which cannot be overridden by contract law.
(Mayer-Schönberger, Cukier 2013) recognise that privacy has become much more difficult to protect, especially with old strategies such as individual notice and consent. The use of terms and conditions disempowers the data subject, because:
* The terms and conditions are non-negotiable
* They can be changed at any time
* The changes can take place retrospectively
Cullen (Hoback 2013) documentary “Terms and conditions may apply” draws attention to the use of T&C’s They are typically very long, written in legalese, appear in a small font, and the text often uses capital letters.
You wouldn’t be expected to agree to a set of T&C’s before being able to watch television, or before being able to read a book; whereas that is precisely what is expected of you if you read an ebook on a Kindle device, or watch a video on YouTube.
UK copyright law does not have a generic “no contractual override” provision which would apply in all circumstances. However, following a series of changes to the copyright exceptions which were brought into force in 2014, a number of the exceptions contain wording which does prevent contract override. So, for example, the text and data mining exception says that “To the extent that a term of a contract purports to
prevent or restrict the making of a copy which, by virtue of this paragraph, would not infringe any right conferred by this Chapter, that term is unenforceable”, and a similar form of words is used in a number of the copyright exceptions.