Another clause for concern with Xtra's terms and conditions

As legal concerns over one aspect of Xtra's terms and conditions fade, questions are being raised about another clause which seems to grant Xtra the right to block email.

As legal concerns over one aspect of Xtra's terms and conditions fade (see Xtra backtracks on changes to terms and conditions), questions are being raised about another clause which seems to grant Xtra the right to block email.

Xtra is still defending the terms and conditions, saying they are consistent with international best practice.

But IT law specialist Averill Parkinson says clause three, which relates to the end user's responsibilities, includes a paragraph about what Xtra deems to be an unacceptable use of the service.

"[A]ny material or communication which we consider to be unauthorised, misleading, objectionable, restricted, defamatory, illegal, inappropriate or contrary to these Service Terms or detrimental to our reputation or to our brand".

Parkinson says the first half of the paragraph is fine, and is common practice.

However, the second half, "detrimental to our reputation or to our brand", is a bit over the top she says.

"Something can be true and still be detrimental to their brand."

If anyone does use the service for such unwelcome content, Xtra requires users to agree that "we may edit, delete, block or disconnect that material or communication ourselves".

"What if I'm a lawyer representing someone who is suing Xtra? I could conceivably be using the service to transmit information that could be detrimental to Xtra's reputation. Does that mean they have the right to block it, or to edit my email?" asks Parkinson.

She is also concerned by the word "delete".

"Can Xtra then require access to my system to delete the content from the network?"

Xtra spokeswoman Anna Kermode says that is not the intention of the terms and conditions.

"There are two types of content that goes across our network. One is portal content of which we are the editor and we have control of that. The second is all the data transmitted across our network. That's all the email and anything posted on our site by users."

Kermode says clauses three and four relate to the first type of traffic - content which ends up on the portal side of Xtra's business, rather than data being sent across the network.

"If objectionable material is brought to our attention [on the Xtra network] we need to be able to take action." Kermode says this is common to most ISPs around New Zealand.

"It's consistent with international best practice and most other ISPs have similar rights on their websites, like Ihug, Slingshot, Sky Mail and Paradise. They've all got terms and conditions which allow them to delete or terminate this kind of material."

Parkinson says while that is fine for illegal or inappropriate material, including a clause about content which may be "detrimental to the brand" is not common practice.

A search by Computerworld Online shows that while Ihug, ICONZ, Paradise and ClearNet terms and conditions do make mention of being able to terminate content that is inappropriate, none of them have a clause relating to content that is "detrimental to the brand".

Slingshot does carry a similar clause, however, which states: "You must not use nor allow anyone else to use the service in a manner likely to or intended to, cause damage to or compromises the security of, Slingshot's reputation or network, or that of any other person, or any other network of linked computers".

Parkinson says the problem seems to have arisen because Xtra is trying to fit one set of terms and conditions to its entire service, both content provision and ISP services, rather than having separate terms and conditions for portal content, for email and for posting user content online.

Xtra's own definition of its service includes "email services, information services, bulletin board services, chat areas, news groups, forums, groups, personal web pages, calendars, photo albums, file cabinets and/or other message or communication facilities designed to enable you to communicate with others (collectively 'Communication Services')."

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