Currently, to get an A at ToS;DR classifications, a service must have no bad (or blocker) cases.
Sometimes this may seem unfair, especially when a service only has bad cases that aren’t really affecting user’s rights.
As a result, I propose changing to neutral the following cases (further explanations are detailed below):
These cases can be applied to any service, and anyway terms that don’t disclaim warranties are often incomplete and not enforceable (there’s no such thing as a Service that is able to guarantee that they’ll meet our requirements, for instance).
Regarding this case, the reason is similar too. It’s impossible to know if someday in the future they would need to stop providing some features or even terminate the service.
As raised in The problem of "You must create an account to use this service", this case is quite ambiguous. There are many services (like email providers, VPNs or Anti-Virus services) for which requiring users to register makes sense and creating an account doesn’t necessarily mean providing personally identifiable information (which is covered by case 409) We could purge the points linked to it, and only keep those linked to services that shouldn’t require users to register, but that would make the case even more ambiguous and probably only few services would fit with the case.
This could potentially affect user rights actually.
If I understood well the meaning of the case, it applies to services reserving the right not to publish or display some user communications for any reason.
For instance, I’ve recently reviewed the service Metager (search engine) and created a point linked to this case, stating:
We also reserve the right to block web pages with demonstrably incorrect information, web pages of extremely poor quality and other particularly dubious web pages.
I think this kind of censorhip shouldn’t get unnoticed.
The main issue lies in the case name vs the case description
The title implies that the user can be banned or blocked, it is basically like this everywhere though. The description however states “for any or no reason”, so we should at least reflect that in the title or its misleading as you do not see the case descriptions in the annotation list.
Is this case about users or content? I’d say “User communications” refers to content posted or similar, so this case would refer to content censored before publication, but I may have misunderstood the title.
https://edit.tosdr.org/cases/293 - This exclusion of liability seems to be a must-have clause in ToS, thus turning the case to neutral might draw tosdr users attention to bad cases that would make the difference between services.
I agree, except for Case 145 as it does not specify that the claims are related in any way to the user’s activities on the service. It could potentially be used against a user in regards to a claim that (s)he has nothing to do with it, i.e. damages caused by a different user or any third party.
If the service does specify that those claims are to be defended and indemnified only when the claims are a direct consequence of user activity, I think we should use case 146 instead. So: Case 145 would be bad; Case 146 would be neutral.
You’re right, and I think there’s even a difference between the meaning of the title of the case and its points.
While the title doesn’t specify it only applies to claims regarding user activity, the linked points are very similar to Case 146 excepted they do not mention defending the service and only holding harmless and indemnifying.
Some examples:
CaptiVoice : You will indemnify and hold the Company, its affiliates, officers, directors, employees, agents, legal representatives, licensors, subsidiaries, joint ventures and suppliers, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third party
Jitsi You will hold harmless and indemnify 8×8 and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the Use of the Service or violation of these Terms, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
Apple You agree to indemnify and hold Apple, its officers, directors, shareholders, predecessors, successors in interest, employees, agents, subsidiaries and affiliates, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against Apple by any third party due to or arising out of or in connection with your use of the Site
a case that only applies to claims regarding the user’s own activity (this would be neutral), and
another one for terms that have defend, hold harmless, indemnify clauses that are more general and could be applies by claims unrelated to the user’s activity (this would be bad).
In considering existing cases 145 and 146, this would mean adjusting the phrasings to match the titles and also moving points between them accordingly when necessary.
If no other opinions are expressed in the next few days, I’ll apply the following changes:
Turning cases 145,146,117,293,139,287 to neutral
rephrasing case 145 to make clear it only applies to user activity You agree to indemnify and hold the service harmless in case of a claim related to your use of the service
Open a case proposal for the creation of a case similar to 145 but for indemnifications for any claims, whether related to user activity or not (which would be bad).