WhatsApp TOS

There is very little here in Uruguay that isn’t mediated or facilitated in some manner via WhatsApp. As you know, there is nothing of Facebook in my house, including WhatsApp. Sometimes I think I’m the sole person in Uruguay who doesn’t have an account with WhatsApp. Other than my friend’s ninety-four year old mother.

On the other hand, I’ll bet she has an Facebook account.

WhatsApp is ubiquitous here. The bank has a WhatsApp number they will answer. The health insurance company. The phone and internet company. If you want a group to work-out with, they’re on WhatsApp. For some individuals, WhatsApp is the sole method to be in contact with them, other than to find them in person. Sorry. Don’t call or write.

Why WhatsApp?

A cell plan here costs about eight dollars a month. That is the first year introductory price. After the first year it costs twelve dollars a month. That gets 5GB of data and fifty minutes of phone calling anywhere on the American continent, from Calgary to Patagonia and everywhere in-between. WhatsApp data does not count toward the 5GB limit. “WhatsApp gratis”, they advertise. All of the networks have “WhatsApp gratis”. You can’t be in the cellular network business here without offering WhatsApp data as an unlimited resource.

Phone calling after the first fifty minutes in a month costs about twenty cents a minute. It’s pretty easy to see why people prefer WhatsApp voice chat to a phone call. It’s pretty easy to see why people dislike calling me or receiving my phone calls, why they complain that I don’t have WhatsApp.

WhatsApp Terms of Service

So what have all of these millions of people agreed to? Why would I have such a problem agreeing to it when millions of others have no problem at all? Here is a paraphrase of the fourteen sections of the WhatsApp Terms of Service (TOS). If you think it’s dull, try reading the real thing.

First, don’t rely on it for emergencies. Second, the governments of the U.S. and Canada have nicely allowed companies to insert arbitration clauses that deny individuals the ability to pool resources in order to go up against wealthy corporations and hold them accountable with class actions. This is clearly of benefit to the citizens of those countries (not), and their governments are taking good care of them. Naturally, WhatsApp includes such an arbitration clause in their TOS.

You’ll have to register. You will share all of your contacts with WhatsApp. You are not under age thirteen. If you’re not of age to agree to the TOS, it is your legal guardians (usually your parents) who are agreeing. You are responsible for costs of use, including fees and taxes. There may be charges. If so, there are no refunds.

There is a privacy policy and you agree to it. (You’ll read it.) Your information might be stored anywhere in the world. If you violate TOS and/or your account is suspended, you are barred from creating another account. You use the service only for legal purposes. You will not infringe on the rights of WhatsApp or others, nor threaten, nor harass, intimidate, hate, offend, nor instigate the same. You will not publish lies nor use the platform to mislead, nor impersonate others. You won’t use the service to send bulk communications or robot dialing or otherwise make unauthorized commercial use.

You won’t reverse engineer WhatsApp, nor try to modify it or distribute or exploit it. Examples are using it to transmit viruses, gain unauthorized access to systems, disrupt services, create accounts using robots, collect information about users by unauthorized means, sell or resell the service, make the service available over a network for multiple devices. You will keep your account and your device secure and notify WhatsApp of any breach of the security of your account.

You will interact with third parties (WhatsApp is the first party, you are second, anyone else is a third party), including other web sites, apps, content, and services. Those third parties are governed by their own terms.

There’s a section about rights and who owns what. When you publish something on WhatsApp, it’s yours, except that you give WhatsApp rights to reproduce, distribute, display, and create derivative works from it limited to what they need to make WhatsApp work. WhatsApp owns WhatsApp and grants you license to use it subject to the TOS. If you think someone has violated your intellectual property (IP) rights on WhatsApp, there’s an IP policy document that might be of interest to you. If you’re guilty of violating other’s IP rights, your account may be terminated.

The fun parts

All of that is pretty straightforward. You’re an upstanding citizen who won’t be abusive to WhatsApp or other WhatsApp users. Since WhatsApp is so nice, they will have all of the contacts on your phone. There’s a privacy policy to read. What else?

Here are the disclaimers. Use at your own risk. There is no guarantee that WhatsApp is fit for what you need or expect and no warranty. Of interest is that the software is NOT warranted to be free of viruses or other harmful code. There is no obligation to WhatsApp to control the use of WhatsApp or even enforce the TOS. If service is disrupted, there can be no claim of harm. The state of California says that if you don’t know of a claim that you are waiving, you can’t be waiving it. You waive the right not to waive a claim that you don’t know about.

WhatsApp will not be liable to you for any kinds of losses or damages, even if you rely on it for profit, even if you advise WhatsApp of the possibility. Even so, damages are limited to $100 or whatever you have paid to WhatsApp in the past year. This limit of liability extends to the maximum allowed by law. If you notify WhatsApp of a security flaw, and they do nothing, and that flaw is used to do harm, WhatsApp doesn’t have to make it good.

Indemnity

There is an indemnity clause. This strikes you as incredibly strange and you’re not sure what to make of it. What does it mean to “defend, indemnify, and hold harmless”? How would you, a person of limited means, defend WhatsApp from legal costs, losses, and damages? Arising out of your use, your breach of terms, or your misrepresentation? Does this mean that if someone makes a claim against WhatsApp for something you posted, you’re responsible to cooperate, defend them in court, to pay their costs? You think that might be what they’re saying.

Suppose for example that this article went viral and people started fleeing WhatsApp (as if that could happen), and that the writer has accepted the TOS. Would the writer be required to compensate WhatsApp for losses or damages? Does accepting the TOS mean that you have to be careful of what you write about them? Is this effectively a hush clause? Presumably, if you’re not “misrepresenting” you’re okay. Who decides? An arbiter or a court in California? Or not? What does defending from loss mean?

Wikipedia has a contract law article about indemnity. It begins, “Indemnity is a contractual obligation of one party (indemnifier) to compensate the loss incurred to the other party (indemnity holder) due to the acts of the indemnitor or any other party.” (I added the emphasis.)

Reading the TOS you realize you’re into something over your head. WhatsApp calls the shots, makes the rules, owns the game. It’s no wonder we don’t bother reading. You’re pretty sure you would need legal counsel to truly understand what you are exposing yourself to. Are there any attorneys out there who would like to step up and explain?

Indemnity is insurance. If you or I want insurance, we pay for it. WhatsApp has all of us give it to them in return for the privilege of use.

Arbitration

If you do not live in the U.S. or Canada, you agree to take any dispute you have with WhatsApp to litigation in California. If WhatsApp wants, they can switch to a court in your country that has jurisdiction. It’s up to them.

If you live in the U.S. or Canada you must arbitrate any dispute with WhatsApp as an individual. You cannot go to court. You cannot pool resources with others who might have the same dispute. You can opt-out of arbitration by writing a letter postmarked within the next thirty days and mailing it to WhatsApp. You would have to go to California to file the dispute. What resources could you possibly bring to bear? You don’t bother. In any case, opting-out of arbitration doesn’t free you to create or join in a class action dispute.

WhatsApp is not required to provide uninterrupted service, nor for that matter any service at all. WhatsApp may discontinue service at any time both to you and to everyone. No reason is needed to delete your account. Some of the TOS provisions survive even after WhatsApp denies you service, including the disclaimers, limitation of liability, indemnification, and dispute resolution.

There are further, small details– entire agreement, later changes, local laws, U.S. export controls, no amendments or waivers without consent of WhatsApp (however WhatsApp may amend with notice). WhatsApp may assign their rights and obligations under the terms to others but you may not. Lack of enforcement is not a waiver. All rights not granted are reserved. If you make a suggestion and WhatsApp uses it to profit, WhatsApp does not have to compensate or reward you.

The whole agreement is available in other languages, but English rules.

Congratulations on making it this far. You already knew that this would be all about what you do for WhatsApp and not about what WhatsApp does for you. The net effect is that WhatsApp promises you nothing and you promise them a ton. They have zero responsibility, zero accountability, total control. Naturally.

Do you still think WhatsApp is free? Would you hire a person who accepts zero responsibility, has no accountability, and says they do anything they want? Keep them as a friend? Invite them into your home? Give them your address book and tell them who is closest to you, whom you talk with the most, where you like to eat out? Allow them to live on your phone and follow you around? A total stranger from California? Just because everyone you know thinks they’re okay?

Next up we’ll have a look at the privacy policy. That’s right. We’re barely halfway through.