CloudConsumer: contracts, codes & the law

This consumer cloud is in serious flux. Consumers have, perhaps inadvertently, flocked to the cloud via unpaid social media, storage and email offerings, whilst resisting paid cloud take-up for reasons (inter alia) of cost, resources, technical ignorance and security. Yet consumers are taking a storage, privacy and data risk in the ‘free’ cloud, and there is a growing consciousness of this fact. At present however, (non) buyer beware or “you get what you pay for” seems to be the prevailing industry – and consumer – expectation. The result is that individual and small business consumers are caught in a gap between paid and unpaid offerings; one which this paper explores through a consumer law view of cloud computing. An examination of Australian consumer law reveals that cloud provision is, like most other consumer ‘goods’ or ‘services’, covered under Australian law, and in particular, the laws governing false and misleading conduct, unconscionability, statutory guarantees and unfair contract terms. The paper considers these laws and industry regulatory solutions such as the New Zealand CloudCode, together with considering various cases brought to date, future developments and proposing future responses. The underlying prediction is that the emerging issue of consumer cloud integrity may present an impediment to wider individual/small business uptake, and that consumer law may emerge as an effective redress for this perceived market failure, and offer potentials to reshape the industry from a consumer perspective. The author concludes with the view that the cloud industry has significant risk assumption, contractual simplification and educative communication work yet to do to better encourage consumer paid cloud uptake and more universal adoption.