User Protection in IT Contracts: A Comparative Study of the Protection of the User Against Defective Performance in Information Technology
by Clarisse Girot
Kluwer Law International, 2001
Reviewed by: Antoni Brack
Professor of Legal Aspects of Business Enterprise
School of Management Studies
University of Twente, The Netherlands.
This book of almost 500 pages (table of cases, bibliography and index included) has served as a doctoral thesis written at the Center for Law, Public Administration and Informatization of Tilburg University, The Netherlands. Born 1972 in France, the author studied law in Paris and graduated in 1993. In 1994 she studied European and comparative law at the University College of Oxford. After being employed by a law firm for about a year in, again, Paris she went to the University of Tilburg to carry out her doctoral research.
2. Subject Matter and Contents
Modern life has become highly dependent on the proper functioning of technology in general and information technology in particular. Are the users of information technology (IT) protected sufficiently against computer malfunctioning? In this study 'user' is meant to be every contractual counterpart of suppliers of IT services, commercial customers as well as consumers. Both types of customers are weaker parties because they are non-professionals in IT matters. This causes standard imbalance in IT contracts. On top of that most customers are layman in legal matters also. This causes another inequality: that of bargaining power. Parties do not negotiate IT contracts, these are contracts of adhesion. The author successfully describes other relevant factors that characterise the context of (most) IT contracts for example the international nature, the immaterial performance of IT agreements, the fallible reliability of (information) technology. She makes plausible that it is due to these factors that the Microsoft Company is able to release new versions of imperfect software.
This book is structured very well. The research objectives are presented clearly in the first chapter (on page 11):
'This thesis will consider how the risk of inadequate performance under standard contracts is handled in comparative contract law, and whether the legal answers to these issues may be considered satisfactory'.
For the comparative perspective three legal systems were selected. The choice to consider English, Dutch and French contract law has been given careful thought.
Furthermore, the research in comparative perspective focusses on three contract types: standard software licences, database user contracts (electronic information services) and Internet access contracts. A further limitation is that these contracts are understood to be 'downstream', that is, concluded between professional providers of these IT services and their end-users, whether professionals or not.
The plan of the research represents the content of the chapters. The author discerns two steps. The first step is to define the general framework: concern for the protection of weaker parties in the selected three legal systems (Chapters 2 to 4). Four protective instruments have been found in the studied contract law systems. To each of them a chapter is devoted (second step, specific concern): liability for defective IT services (Chapter 5), pre-contractual information: misrepresentation and duties of disclosure (Chapter 6), enforceability of standard contracts and general conditions: shrinkwrap licences and incorporation by reference (Chapter 7), exemption clauses in IT contracts (Chapter 8). Chapter 9 summarises the conclusions from previous chapters.
4. General Concern: Protection of Weaker Parties
The notion of reasonable expectations is derived from the comparative analysis and its protective function is assessed by studying the treatment of contractual imbalance and inequality of bargaining powers in consumer law. The author strongly advises, though, to restrict consumer protection measures to the domain of consumer law, preferably based on a strict definition of the consumer concept. If my understanding of this part of the book is right, the collective mechanisms by which consumers are protected should not be transformed to the domain of weak commercial parties but their protection should take place on an individual basis and in accordance with the specific circumstances of actual cases.
5. Specific Concern: Protection of Users in the IT Sector
Deliberations on the liability for defective IT services are complicated by the fact that quality in IT has subjective and objective components. The more or less subjective approach of English law in this respect is reported to be different from the Dutch and French methods. The findings with respect to pre-contractual information duties are dominated by the English system of implied terms on the one hand and the continental European principle of disclosure on the other, although the difference is not as grave as it may seem.
The conclusions on the applicability of the terms of shrinkwrap licences and the incorporation of general conditions by references are not as clear as one should have wished. Amongst other problems, the main complication of the shrinkwrap method is indeed the break in of the producer of the software to the contract between the retailer and the (potential) user of the software copy. The incorporation of terms by reference in the case of online contracts differs substantially because this relationship is bilateral. Here the author seems to have more consideration with the position of the service provider: in an online situation he has practically no other possibilities to present his general conditions to the adherent before the conclusion of the transaction.
Equally important as the applicability of business conditions is the enforceability of these conditions. This study has paid special attention to two types of exemption clauses in IT contracts: the exclusion or limitation of the provider's liability for defective performance and the so-called four-corner clauses or 'entire agreement'. The author has reported a major difference in respect of the enforceability of exemption clauses between French law on the one hand and English and Dutch law on the other. In the latter mentioned jurisdictions statutory methods are used while in the French legal system case law dominates. Consequently, French law lacks an easy accessible operational list of criteria to assess exemption clauses on enforceability. In this respect the author has qualified the French situation as 'undoubtedly unsatisfactory'.
6. Evaluation and Conclusion
Most carefully I put my only point of criticism into words: somehow it is hard to avoid the impression that the author, after considering all the pros and cons, did not dare to draw the ultimate conclusion. Towards the closing sections of the book she suddenly brings up nuances about the in itself clear result of her excellent research. Many reservations are made, such as, commercial IT-users should not be protected 'automatically' like consumers are, and, the need for protection will decrease as the knowledge of IT increases. Why put forward the possibility that the protection of users might damage the position and interests of providers? Is there really any indication that:
'judges would excessively project their own feelings of unease with technical matters on (...) decision making in IT litigation',
or is it a mere psychological exaggeration? Some readers will perhaps appreciate this far-reaching modesty, to me to be honest it does spoil the appreciation somewhat. On top of this the author ends her book with another inclination of modesty: she disparages the importance of contract law by reminding us that it is not the only relevant body of rules. International quality standards, professional codes of conduct, competition and product liability laws, etcetera, are at least of equal importance. French courtesy?
The closing remarks of this review take nothing away from the merits of this book. This book is very well written with a professional wisdom that is seldom seen by an author of this age. The book is worth every eurocent of its price, which is rather more than €100.
This is a Book Review published on 16 August 2002.
Citation: Brack A, 'User Protection in IT Contracts: A Comparative Study of the Protection of the User Against Defective Performance in Information Technology, by Clarisse Girot', Book Review, The Journal of Information, Law and Technology (JILT) 2002 (2) <http://elj.warwick.ac.uk/jilt/02-2/brack.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2002_2/brack/>.