This is what happens when you do not update your legal terms in 4 years
Bu why is this significative? We have talked about it before, but the important thing to remember is that the terms and conditions are a contract formed by clauses previously established by one the parties (the company), where the other party (the consumer) can only accept them. That means that the user cannot negotiate those clauses, having just the option to accept them or not.
This kind of contract is used by multiple services that regularly need to sign an agreement with a huge amount of users. Those contracts, the terms and conditions, in summary say: “This is what we do, do you take it or not?”
The legal protection for this kind of contracts is more extensive. For example, to protect the users from unfair clauses that could try to impose the user a conduct or an action that they did not have the power to negotiate.
For that reason, the law compels the companies (the parties that usually establish the terms and conditions), to be very clear, transparent and precise about them. In fact, if the user does not have a real chance to read those terms when the contract is being entered into, those clauses wouldn’t be part of it (according to art. 7 a) of the Spanish Ley sobre Condiciones Generales de Contratación).
WhatsApp has been adding new features to the service for the last 4 years. More than a few of them have important effects on the rights of the user, for example its privacy (the blue double check, the VOIP calling service, the buyout by Facebook or the end-to-end encryption of the chats).
However, those and of more aspects of the service are non-existent on the terms and conditions accepted by a user when registering in WhatsApp. In fact, some of the clauses totally contradict what the user can do on the service.
Having said that, let’s take a look at those absences and contradictions.
The 37 contradictions of WhatsApp
1.- The owner of WhatsApp is Facebook, not WhatsApp (FB acquired it in 2014). However, there is no mention of it. So for example, to whom should I address to exercise my right of access?
2.- The use of the service should be personal. In fact, the commercial use is expressly forbidden. Nevertheless, plenty of businesses and even public institutions use WhatsApp everyday beyond the personal license. Without any problem at all.
3.- Although WhatsApp prevents the automated delivery of messages, a user can access services and tools that just provide these kind of service. And again, without consequences.
4.- WhatsApp is still preventing search engines to make cache copies of its website. Although in fact they are available.
5.- The texts, graphics, software, and more components of WhatsApp are owned by Facebook, not WhatsApp. Although this isn’t what the terms say.
6.- A third party cannot use the messages of the users with a commercial purpose. However, it’s easy to find businesses that use the message of a user without a problem to advertise a product, for example.
7.- Although the terms talk about the possibility of sending “other communications”, the option of sending video, audio, files such a PDF or making a call is not mentioned at all. Neither its implications.
8.- The feature “Last seen” is automatic, according to the terms. So, without an option for disabling it. But actually, for the last couple of years it has been possible to deactivate it.
9.- Although the new end-to-end encryption system should assure the confidentiality of a conversation, even from WhatsApp, that option is not mentioned at all on the terms and conditions. In fact, the text still says that there is not guarantee of confidentiality. Despite what has been published.
10.- To send advertisement or making job solicitations is forbidden. Nevertheless, WhatsApp has become a regular channel to manage a rent or for customer service. Again, without any major consequences.
11.- The lack of interest or the extension a message could suppose its deletion (yeah, that’s on the terms). However, nothing like that has ever happened as far as we know.
12.- It is established that the service is provided from the United States and it could be inappropriate to access it from another country. Actually, more than 1000 millions persons are using WhatsApp from all over the world.
13.- You must be 16 years old to use the service. Nevertheless, plenty of users under that age use it without much of a problem.
15.- The possibility of personal information from WhatsApp being shared with Facebook is not referenced. Something that Facebook does through its Data Policy.
16.- The option about billing and having to pay for the use of the service is still there, although the service is free since January 2016.
17.- The cookies that the website can install are mentioned (although not a lot of people visit the website for using WhatsApp). However, there is no mention of cookies or similar technologies that the app could install on your device.
18.- WhatsApp says that it does not compile personal data beyond the phone number. Nevertheless, it has been demonstrated that it gathers more information, for example through the VOIP calls.
19.- The data retention policies of WhatsApp are still a mystery, as was pointed out and criticized by the Electronic Frontier Foundation. Specially now that we can save the messages.
20.- The terms still talk about specific programs of advertising where the user may have the option to opt-out or in. The thing is that advertising in the service has been discarded as a monetizing way.
21.- The existence of the blue double check, its implications and the option to limit it, are not mentioned.
22.- On iPhone, you can save a conversation to iCloud. Something not referenced or explained.
23.- The terms still talk about the transfer of personal data to USA, even from Europe. Not taking into account the recent changes on the subject with the invalidation of Safe Harbor.
24.- The terms says that in case of acquisition by a third party, the info from the users could be transferred to the new owner. In fact, this already happened in 2014 when Facebook bought it.
25.- The option to import data from a Facebook profile, the data imported through that process and the link created by that, is not mentioned at all.
26.- The existence of WhatsApp Web is not referenced, neither the data that could be gathering.
27.- The terms say that it’s not possible to limit the visibility of a profile according to different users. However, the settings from the app let’s you establish it to No one, Contacts or Everyone.
28.- The options “Delete account” and “Change phone number” are not mentioned. Neither its implications.
29.- The option about “Use of Storage” (the total of messages sent per user/group), is not mentioned. Neither the use of that information by WhatsApp.
30.- The possibility to activate the files saving is not referenced.
31.- The possibility to export a chat and its implications… no one knows or answers.
32.- The possibility to silence a user or group is not mentioned either. For example, if I always silence groups with specific users, does it have any consequences?
33.- The option to create groups, its differences and management is not referenced.
34.- The feature that let’s you take a picture from the own app, and the metadata that could be gained from that, is not mentioned.
35.- The possibility to make a call from the app is not mentioned, neither its implications.
36.- The option to create “Distribution Lists” and its variations is not discussed.
37.- The possibility to see if someone is “Online”, even if some other features are disabled, is not mentioned.
To sum it up, we wouldn’t be lying if we say that the terms and conditions of WhatsApp have serious irregularities nowadays. Starting with the language (the terms are only available in English). In fact, that is something that a court in Germany has already established as a problem, compelling WhatsApp to translate the terms to German. But the terms and conditions of WhatsApp right now are a problem due to the huge difference between what you legally accept and what you finally use.
We’ll keep waiting for the changes…