ICTlogy

Online entertainment and customer protection
Pedro A. de Miguel Asensio. Catedrático de Derecho internacional privado de la Universidad Complutense de Madrid. Autor de la obra Derecho Privado de Internet

Who is a customer in online entertainment?

Mechanisms of customer protection:

• Obligation to inform / right to information.
• Right to desist.
• Protection against abusive clauses in contracting within general conditions.
• Actions on unfair competence, illicit advertising, trademarks.
• Personal data protection.
• Protection of (other) personal rights.

There is huge disparity between the US regulator framework and the EU’s. Indeed, this may be a reason why most international operators are based in the US. Establishment of standards, policies and reform of the actual legal framework might bring big changes in Europe: would a change in EU Law enable that the “next Twitter” could be born in Europe? In the US, normally businesses have less barriers but customers are much more protected, while in the EU it happens just the contrary: restrictions are put upon businesses but once they do not respect the customer, the latter has less legal coverage.

Operators normally act in three steps: they set their business models and fix general terms of use; the adapt some terms to the local law; and they yield to local courts in case of legal disputes. Normally, EU law makes it possible that customers can complain before their local courts: even if customers “technically” can be buying their services abroad, the law tries to bring the dispute as close as possible to the customer. And this includes, for instance, that the information on the website is fully accessible (language, terms, etc.) for the customer that the service is targeting.

Service providers increasingly operate at a global scale and under different standards (e.g. EU vs. US). There are risks in not accurately protecting the customer, but, on the other hand, overprotection can incur in damaging the industry. It is interesting to consider, though, that if we e.g. can adapt, customize or even personalize (online) advertising, why not the terms of use of a specific digital service or good.

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