FNB gets it wrong with “How can we help you?”

First National Bank has just launched a new service called “How can we help you?” which is “a niche social network centered around financial content” (according to FNB’s online strategist, Andy Hadfield). The service is a good example of what a bank can do to help its customers understand and better manage their financial affairs and, given the current financial climate, more banks should be launching services like this.

Unfortunately FNB has failed to create an adequate legal framework for its new service to operate within. Given its social nature, the service should have a more developed set of terms of use and a privacy policy to cater for the myriad issues and considerations that affect social services and public websites in general. As I write this, the service only has a disclaimer which visitors to the site are required to accept when they arrive at the site.

The way the disclaimer is first presented to users is well done, at least from a legal perspective (as opposed to a usability perspective), because it brings the disclaimer’s existence to visitors’ attention before they enter the main site and requires positive action signifying agreement with the disclaimer’s terms before being allowed to access the service. Below is a very quick guide to what the disclaimer says and is intended to achieve:

As I mentioned above, the disclaimer is totally inadequate given what the service requires. While it appears to be a pretty effective tool for limiting FNB’s potential liability arising out of access to and use of the service, it fails to cater for a range of factors which websites should, as a rule, cater for in their terms of use. Two sets of provisions, in particular, should have been included. The first is a more developed content licensing section and the second is a privacy policy. Other provisions include a set of community guidelines (there is a small set of forum guidelines which do mitigate this), jurisdictional and applicable law provisions, breach and dispute resolution clauses (not essential but a good idea) and a series of disclosures required by the Electronic Communications and Transactions Act.

While the disclaimer addresses copyright issues and protect’s FNB’s copyright in its content and other website materials, it fails to cater for users’ contributions aside from stating that it reserves the right to reject submissions. Users are invited to participate in a forum and express their views, share ideas and so on and yet the disclaimer fails to include a license for that content from users to FNB or from its users to other users to consume that content. By default copyright in users’ contributions will vest in them and FNB’s ability to receive and manipulate those contributions will be determined by an unwritten and implied license which users are taken to have granted to FNB. A similar license is presumably granted to other users who participate in the forum and otherwise make use of the website. This is highly undesirable from FNB’s and users’ perspectives because an implied license is inherently vague. This is why online services include detailed, if not somewhat complex, licenses in their terms of use. The goal is to grant the various participants and stakeholders sufficient rights to make use of the content and have a high degree of certainty what those rights enable and protect. FNB’s current terms don’t begin to do this and expose FNB and its users to potential copyright infringement claims.

The next big area of concern is the apparent lack of a privacy policy of any description. This is vital because FNB collects personal information from and about its users both through the registration process and just by visiting the service. I discussed why privacy policies are important in a previous post so I won’t rehash all of that here. What is important is that FNB is not obtaining its users’ and visitors’ informed consent to FNB collecting and processing their personal information. This is problematic now under the general right to privacy and it will be especially problematic when proposed privacy legislation is eventually passed. There may be implicit consent to FNB collecting registration information but there is no way to determine whether that information is, in fact, being used for purposes the users may consent to when they sign up. The risk here is that FNB could use registration data to compile a marketing database, for example, and that would be at odds with users’ expectation that the registration data only be used to grant them access to the service. Again there is considerable uncertainty here and this could be avoided by publishing a clear and plain language privacy policy. Contrast how FNB handles (or doesn’t handle) privacy considerations on this service with its privacy policy published on its main site. At the very least FNB should include a link to that privacy policy on the service’s pages.

Linked to the privacy policy issue is the absence of a Promotion of Access to Information Act manual which FNB is required, by law, to publish. FNB does publish links to its manual on its main website but there is no reference to that on “How can we help you?”. Again, these links should be repeated on the service and other similar sites FNB runs.

If you compare the various notices on FNB’s home site and on this service there is clearly a disconnect between the people who set up the legal framework on the main site and the people who set up the framework on the service. It is also clear that the lawyers who created the disclaimer don’t appreciate the kinds of terms that are required for social services online. Simply posting a disclaimer of liability and warranties coupled with an elaborate copyright notice is not enough. Terms of use need to be more developed, written in plain language and must cater for all the considerations that apply to social services. A failure to do this can lead to avoidable claims and create unnecessary uncertainty.

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