If you are a BlackBerry user who browses and downloads content on the device, but does not keep that content specifically on that device, you are behaving inappropriately and may have legal action taken against you.
This is according to Vodacom's BlackBerry usage terms and conditions, which outline the restrictions and preconditions relating to Vodacom's BlackBerry Internet Service (BIS) and BlackBerry Enterprise Server.
In its on-device and off-device terms of use policy, Vodacom advises users that all content acquired through browsing and downloading using BlackBerry data is intended for storage on the “respective device”. It goes on, in the off-device policy, to instruct that such content may not be transferred off the device to any other, be it a PC or another smartphone, save for the explicit purpose of backup.
Then a warning: “Utilisation of content acquired in this manner will be constituted as inappropriate behaviour on your part and Vodacom may, at its discretion, take such steps against you as the circumstances require, including initiating legal proceedings against you.”
Problematic phrasing
New media lawyer Paul Jacobson says the clauses in Vodacom's BlackBerry usage terms and conditions that deal with on-device and off-device policy are problematic, for various reasons.
“The statement that this content is 'intended for storage on the respective device' implies that this content should be kept on the device and ignores the rights a user may have in that content and that the user may wish to exercise. For example, a user may access a photo she took and published to a Web site and then download it to the phone with the intention of transferring it to another mobile device or laptop. This sentence already implies that may be problematic.”
Jacobson says Vodacom's intention may be to prevent users illegally downloading or accessing content using their devices and, if so, the terms should be more specific. “A blanket prohibition with the consequential threat of legal action for infringing these provisions is unreasonable and possibly open to challenge under the Consumer Protection Act.”
Last resort
Vodacom's executive head for corporate communications, Nomsa Thusi, says these terms are nothing new. “The BIS service has always been an 'on-device' service, which means customers can browse and consume content, but cannot download and export it to another device for consumption on that device. For example, they cannot download a movie and export it to another device to watch the movie on that device.”
Thusi concedes, however, “making a backup of content using the BlackBerry is perfectly acceptable under these terms as the backup is not used for any other purpose”.
She says that, while Vodacom reserves the right to institute legal proceedings against anyone in breach of the terms and conditions, “Vodacom will first exhaust all possible steps to resolve any issues before embarking on a more formal approach”.
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