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Re: [dow1-2tf] Moving forward on "conspicuous notice"?/TIMELY

  • To: metalitz@xxxxxxxx, roessler@xxxxxxxxxxxxxxxxxx, mcade@xxxxxxx
  • Subject: Re: [dow1-2tf] Moving forward on "conspicuous notice"?/TIMELY
  • From: KathrynKL@xxxxxxx
  • Date: Tue, 19 Oct 2004 11:38:05 EDT
  • Cc: mueller@xxxxxxx, dow1-2tf@xxxxxxxxxxxxxx, dmaher@xxxxxxx
  • Sender: owner-dow1-2tf@xxxxxxxxxxxxxx

Steve wrote: <<> Thomas, you may believe that current practices are privacy 
> violations, and I respect your belief.  But you also appear to believe that 
> if 
> a
> registrant consents to current practices, it is still a privacy
> violation.  That position is a lot harder for me to understand, at least
> as a legal issue.  >>

Steve and all:  It is still a privacy violation.  Simply, in many 
jurisdictions a customer/constumer **is not free to waive rights by contract** 
his/her jurisdiction has chosen to protect.  Contract is not free to overrule 
laws, especially in critical areas of public policy such as privacy and waiver 
of liabilities.

In the US, for example, every consumer contract notes that a customer living 
in certain states **is not free to waiver his/her rights regarding limitation 
of liability.**  Every other customer must waive these rights, but not the 
one's in this state.  I attach a very typical example below from the giant 
Proctor and Gamble.  This type of language is completely appropriate for the 
registrars' new contracts in countries with comprehensive privacy laws.  I 
think it 
is reasonable for all Registrar contracts to say regarding 
collection/disclosure of information:  "the above limitations/requirements may 
not apply to you."  

In no even shall P&G be liable for any direct, indirect, special, punitive, 
incidental, exemplary or consequential, damages, or any damages whatsoever, 
even if P&G has been previously advised of the possibility of such damages, 
whether in an action under contract, negligence, or any other theory, arising 
of or in connection with the use, inability to use, or performance of the 
information, services, products, and materials available from this site.  These 
limitations shall apply nothwithstanding any failure of essential purpose of 
limited remedy. ***Because some jurisdictions do not allow limitations on how 
long an implied warranty lasts, or the exclusion or limitation of liability 
for consequential or incidental damages, the above limitations may not apply to 
you."*** " 
Note:  text changed from all caps to upper/lower so I would not be "yelling" 
in cyberspace and I highlighted the key sentence in stars.

Regards, Kathy

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