The NCC says that consumers are stripped of their rights by
overly-legal licences that they cannot understand, and has called
for licences to be written in plain English, in line with OFT
guidelines.
The NCC bought 25 software products and found problems with the
licences in 17 of them. It has referred these for investigation by
the OFT to find out if they breach consumer legislation that
demands that contracts be fair.
It said that problems include a lack of notice that users will
even have to sign an end user licence agreement (EULA), and the
fact that they do not have a chance to review it before purchasing
software.
"Plugging the gaps in consumer legislation is a vital move,"
said Carl Belgrove, senior policy advocate at the NCC. "Consumers
can't have a clue what they're signing up to when some terms and
conditions run to 10 or more pages. There's a significant imbalance
between the rights of the consumer and the rights of the
holder."
Belgrove told technology law podcast OUT-LAW Radio that it is
not fair that licences can only be viewed after the purchase of
software.
But IT law specialist John Salmon of Pinsent Masons, the law
firm behind OUT-LAW.COM, said that this has been industry standard
practice for years and was now accepted by the courts.
"There have been cases both in the UK and the US, and the judges
in those have been very pragmatic, have said this is industry
practice, this is what happens, this is a practical way of dealing
with a legal situation," said Salmon.
The NCC criticised software publishers for highlighting in the
licences only those parts of the law which benefit them and not
those that benefit customers. It said that the terms of contracts
were potentially unfair.
Belgrove told OUT-LAW Radio that he believed that consumers were
particularly at risk because normal consumer protection does not
apply to software.
Salmon and Pinsent Masons litigation specialist David Woods
contested that. They said that while it may be the case that the
Sale of Goods Act does not apply to downloaded software, it does
apply to physically purchased software. They also said that laws
about unfair contract terms still applied to all software bought by
consumers.
The NCC said that it hoped its campaign would result in software
publishers changing their licences and the European Commission
making amendments to consumer protection laws.
