Are You App Safe?
“People have forgotten this truth," the fox said. "But you mustn’t forget it. You become responsible forever for what you’ve tamed. You’re responsible for your rose.”
- Antoine de Saint-Exupéry
t was in the land of far away, and serenity paraded green landscapes, flowers, dew, rain showers and lakes. Not long ago, far away was just an abstract thought; however, the phrase ‘the world is a small place’ holds more truth to it now than one could have ever anticipated. A lot of this accredits to the multitude of technological advances. While the debate revolving whether technology is an opportunity or an obstacle is endless, its influence in developing communication platforms is undisputed.
The revolution from carving pictures on stone walls to writing letters and posting them has taken its due course but with the technical advances coming into play, every other decade now brings with it a new medium of communication. Laptop, the compact version of a desktop is now considered sizeable as compared to sleek, smart phones and tablets which these days come along with the new ‘in thing’ – applications or as commonly referred to as apps.
Apps, by default, have become a necessary and indispensable part of every user's routine ranging from waking up to your choice of alarm tone in the morning, calculating total steps walked in a day, shopping online for groceries or spending hours crushing colorful candies. Dependency has overshadowed convenience.
Harmonizing law and technology isn’t always a smooth process since new technical advances not only make the old methods obsolete but also outdate the law regulating it. Hence, it wouldn’t be wrong to state that legal amendments need to be in order to be consistent with the rapid pace of the technology.
Doctrine of Caveat Emptor
The doctrine of caveat emptor is a legal maxim that clothes the warning ‘Buyer Beware.' It has seeped in and permeated every legal and judicial structure acting as a guideline pointing towards the liability of a customer and reasonable use of his rationality before using a particular article or service.
The concept of Caveat Emptor has been in use over the centuries and has undergone its fair share of changes. Traditionally, courts distinguished between the sale of specific goods, capable of physical examination being by the buyer and also; sale of unascertained goods where the buyer was compelled to rely on the seller's description. While the former enquired into the purchaser’s onus strictly, the latter was the exempted from it. This categorization was acceptable in an age where the commodities were relatively simple. However, over the past few decades the economic relationship of buying and selling has been reformed, and presently the strict liability of the buyers has been done away with by restricting it with the specified exceptions:
o Implied conditions imposed on quality or fitness
o Sale of goods by description
o Usage of trade
o Consent by fraud
o Sale under a patent or trade name
o Sale by sample
Mobile Apps and the concept of Caveat Emptor
“Do you trust this app?”
“Please permit the app to access audio and camera.”
“Please enable the location services.”
Homo sapiens may have invented everything required for their survival, but even they don’t possess the ability to add a 25th hour in a day. There is always a shortage of time for anyone and everyone and amidst this shortage spending a few minutes to read conditions before permitting an app to use all our confidential information seems like a Herculean task.
Apps like Facebook and Snapchat are primarily based on making the location of its user’s public clothed with fancy terms like status updates and check in. Moreover, the world is now inhabited by animals called pokémons; some fly in the air while some breathe fire owing to the latest vogue Pokémon go which went on to become the most popularly downloaded app in the world within a few days of its launch but at what price? It not only tracks user’s location but also their email and browsing history. A person can now order anything from clothes, books, kitchen appliances to furnishings without so much as raising their head from their smart phone. Health apps are readily available not only for lifestyle tips but also to diagnose symptoms, measure heart rate, blood glucose level, sleeping pattern, etc.
With easy access to technology and rapid increase in innovations, creating apps and making them available to the masses is a bed of roses but roses are invariably accompanied by thorns. Mobile apps can be considered an extension of offered goods and services. Higher the use of apps, higher is the chance of negligence.
It’s not uncommon these days to find headlines reporting delivery of faulty products bought online, thefts based on knowledge derived from check ins, wrong diagnosis and disclosing confidential information of an app user to other marketing companies which raise the question of whom would the ultimate responsibility fall upon? Are app users covered within the ambit of the doctrine of caveat emptor?
The important aspects in determining this answer lie in analyzing:
o The purpose of the app
o The guidelines provided in the app
o The permissions granted by the user
o The nexus between cause and effect leading to negligence.
App development today is relatively easy, but a robust App platform that can keep pace with future developments, comply with international guidelines (including App Store guidelines) is imperative. App developers are also required to submit documents stating the purpose of the app, version information, and details regarding its interface along with obtaining certified permissions.
However, these regulations are not exhaustive and are completely controlled by private smart phone companies. Therefore, despite these regulations, the Apple's App Store alone boasts close to over 2 million Apps designed for the iPhone and iPad whereas Google's Google Play has nearly more than 2.2 million Apps making the app market a billion dollar industry.
In a recent case, Maynard v. McGee & Snapchat Inc. it was alleged that when a distracted driver caused an accident in order take his selfies with the speed filter, Snapchat Inc. was accountable as it encouraged its users to drive at excessive speeds. An analysis of this case suggests that Snapchat could devolve its responsibility by merely affixing a warning with the speed filter.
App creators of 'Pokémon Go' have repeatedly been blamed for the rising death toll and for placing Pokémons in dangerous milieus, and as a consequence, a warning pops up the minute a user opens the app asking them to be careful of their surroundings thereby shifting the responsibility to the players. They have publically defended themselves by comparing their application to automobiles which once transferred would abolish them of any liability in the instance of negligent driving. So, the next time a person falls off the cliff while catching a magical creature, it would be his fault.
Third party responsibility
Ordered something online and then regretted it?
Digital Platforms like Amazon and ShopStyle pride themselves in being a handy tool that enables a user to shop varied products on the go from any place at any time by putting in the effort so much as moving a few fingers. However, what one fails to realize is that in the case of a defect these apps are indifferent and the blame game swings between the third party retailers listed on the app and buyers.
These platforms ensure their safety from any liability. The terms and conditions for Apps set out precise information by providing all information, content, materials, and products (collectively the Data) available on the Apps. They further clarify that such Data is 'classified' on the basis of “as is” and “as available basis” and any material or service accessible to the user by accessing the app would expressly be at the sole risk and consequence of the user. These apps, therefore, advantage from a blanket protection while the third parties become liable.
The provision of third party responsibility has opened doors to numerous law suits regarding the extent of accountability of the retailers advertising and selling their merchandise with the help of these apps as the retailers contend that apps fail to specify the details of their products accurately consequently harming the consumers.
Guidelines and regulations
The provisions of the Universal Declaration of Human Rights have influenced various national Constitutions which have been amended to recognize the responsibility of the State in protecting and safeguarding the interests of the consumers. Different countries have established their regulatory departments like the FDA that overlook the quality and standards of the products made available to the masses.
These departments lay down the guidelines that govern health apps which diagnose symptoms of its users and provide consequent medical consultation. However everyday apps offering services like online shopping, gaming and transportation remain widely unregulated and unconfined. Hence, creators of health and fitness apps, have higher responsibility owing to the sensitive matters they deal with as compared to other apps.
The modern free society is built on principles of liberty, and personal liability and every individual prefer to be accountable only for his or her action. Humankind has over the centuries struggled to gain independence but the flip side of freedom is responsibility, and such accountability in no circumstance can be eluded.
The evolution of phones from basic devices used for making and receiving calls to being ‘smart’ has been considerably accredited to apps which now are considered nothing short of a man’s extended personality. Gone are the days when playing was used in the context of outdoor sport, people of every age today are engaged in collecting cards to clash, crushing candies or surfing the subway with the help of user interface. These apps are on their way replace local markets, dictionaries, and even the weatherman!
Since buyers and sellers are now more closely related than ever, people need to be aware of the good and services they access, and hence the doctrine of 'caveat emptor' retains significant importance. However, a shift has been observed in the judicial thought from caveat emptor to caveat venditor which literally translates to “let the seller beware”. It directs responsibility towards the sellers keeping in sync with this age of consumer protection, but it can only be justified when there is a disproportion of power between the contracting parties as it completely contradicts the principle of laissez faire.
Unfortunately, modern legislation continues to remain highly ambiguous regarding the applicability of both caveat emptor and caveat venditor in the case of apps despite them transforming us into digital denizens. As a consequence, there is no straight jacket formula or a particular platform except filing suits in a court of law for settling disputes regarding transactions between parties over these apps.
It’s high time that law makers caught up with the creative heads of the world as I sit and ponder how Romeo and Juliet’s fate would have turned out if they could what’s app each other while dismissing another reminder on my phone to drink water.
This article was principally authored by Aashima Sawhney with help of others in STA's Technology, Media and Entertainment Team