First published: 27th October 2008
Allan Dyer
Recently I decided to renew Yui Kee's internet service agreements. During the process I found that Pacnet (formerly Pacific Internet, before that Hong Kong Supernet, probably the first ISP in Hong Kong) had updated their Terms and Conditions, and the changes were undesirable. Some clauses appear to unduly restrict free speech of a political or religious nature. I have tried to discuss the problems with Pacnet, but they have steadfastly refused to even explain their intentions. This is unfortunate, because, as I interpret the new Terms and Conditions, this article would be prohibited, if they applied. However, as I am refusing to agree to the new Terms and Conditions, I do not think that Pacnet can terminate my current contract for this reason.
The Government in Hong Kong is currently conducting a public consultation on the Control of Obscene and Indecent Articles Ordinance (COIAO), and some of the discussion forum users are worried that the Government will tighten statutory control on the Internet, which may hamper the free flow of information on the Net. Why should people worry about the possibility of the Government curtailing free speech on the internet in the future when an ISP is already doing it now?
So, what are the terms and conditions I think are, at best, poorly thought-out? Some affect all users, others are particularly a concern for information security companies, like Yui Kee.
General Terms and Conditions
Pacnet's General Terms and Conditions are on their website, these clauses have problems:
- Clause 7.9.5: no part of the Subscriber Content or the Subscriber Service or the Subscriber Website denounces or will denounce religious or political beliefs; appears to be a direct attack on free speech. If you prohibit denouncements, then you are implicitly declaring there to be only ONE TRUE point of view. In fact, many religions inherently denounce other religions (e.g. "there is no God but Allah", "none shall come to the Father except through me"). In this regard, there are at least two political denouncements on this website:
- The conference paper "Is Hong Kong's new Anti-Spam Law Effective?" is a criticism of Government Policy, and therefore a political denouncement.
- This article criticises Pacnet for a detrimental effect on Free Speech in Hong Kong, Free Speech is a political issue, therefore this article is a political denouncement.
- Clause 7.9.7: the Subscriber Content and the Subscriber Equipment (if applicable) shall be free from viruses, worms, Trojan horses, and other malicious code; is a problem for information security companies that may keep (in a safe form) or use (in a controlled environment) malware. Pacnet has not clarified what "Subscriber Equipment" might cover. Depending on how Pacnet defines "Subscriber Content", it may also be a problem for any subscriber that needs to submit a sample of malware to an information security company, as discussed in our old press release: Yui Kee Warns: CPCNet Puts Customers At Risk; OFTA Adopts a "Hands Off" Position
- Pacnet is also keen to give themselves maximum rights to use (or abuse) their customer's information, in clause 7.14: The Subscriber authorizes Pacnet or grants Pacnet the consent to use any of the Subscriber's information or personal data as defined in the Personal Data (Privacy) Ordinance (Cap.486) for the purpose of processing the registration and for the provision of the Services and any other services provided by Pacnet for the time being (if any). The Subscriber also authorizes Pacnet to transfer such information to any Group Companies and any agent, contractor or third party service provider for the purposes of credit verification, administration, marketing promotions, data processing, customer services or otherwise to perform its obligations or enforce its rights under this Agreement, or for any other purpose incidental to or in contemplation thereof.
- Clause 9: Intellectual Property The Subscriber warrants that it holds all necessary or desirable rights, licences and other permissions in respect of all contents which it uploads to the Internet. The Subscriber hereby grants to Pacnet a non-exclusive and royalty free licence for the term of this Agreement to reproduce, publish, copy, transmit and otherwise use such contents for the purpose of providing the Services. is too vague to be useful. In particular, what does "upload to the Internet" mean? If I use a VPN tunnel to upload a copyright file to a third party computer, does that grant Pacnet a license?
- Clause 20 concerns amendments to the agreement, saying, in part: For the purposes of this Clause, publication or posting of such amendments or variations on Pacnet's Website or by e-mail to the Subscriber shall constitute written notice. A particular problem to note here is that there is no obvious link from the Pacnet website to the URL of the General Terms and Conditions (that is http://corporate.pacific.net.hk/en/terms/general_tc_v3.php), and Google is also not aware of any link, at the time of writing. Is an unlinked page on a website "published"?
The General Terms and Conditions make reference in several places to an "Email Acceptable Use Policy" and a "Security Policy", but, oddly for a webpage, there is no link to those policies. Pacnet staff were able to provide the links on request.
Security Policy
Pacnet's Pacnet Security Policy is on their website, these clauses have problems:
- You shall not yourself, and shall ensure that no one uses Pacnet Service to: a. Deliver Spam; b. Directly or indirectly cause Spam to be delivered to any person or companies; This sounds OK until you consider that many people are sending Yui Kee spam, and I have the means to prevent it... unfortunately, the method is to not have any email addresses.
- Moreover, you shall not yourself, and shall ensure that no-one uses your Pacnet Service to:
- a. Upload, post, email or transmit any message, material, URL or post any content that is ... or affects the functionality of any computer software or hardware or telecommunications equipment; Every data packet affects the functionality of the equipment it passes through, therefore Pacnet's users are not allowed to do ANYTHING with their connection!
- I omitted the detailed list of prohibited activities from the above point, but they include, contains software viruses, destroys, interrupts ... the functionality of any computer software or hardware or telecommunications equipment; Whereas the term "affects" might cover actions by any user, these more damaging actions are often performed legitimately (with appropriate protection, or with necessary authorisation) by information security companies. Pacnet's Security Policy prevents information security companies carrying out their legal business activities.
- c. Collect, compile or obtain any information about Pacnet Service customers or subscribers, including but not limited to subscribers' email addresses and other confidential and proprietary information; This is rather broad, Pacnet customers, for example, are not allowed to put up a webform for sales enquiries, asking for people's contact details because another Pacnet customer might respond. The phrase "without consent" could be usefully added.
- d. Send email via your own or third parties' email server, instead of Pacnet email server, if you are using dynamic IP service; Therefore, Pacnet's home subscribers are not allowed use their corporate mail server when working at home.
When I raised these issues with Pacnet, their response was, "Your comments on our T&C are well received and noted. Please kindly understand that the T&C is structured to strike a fair balance among the law, the customer's benefits as well as Pacnet's benefits." They did not address the issues I raised.
Overall, I think that Pacnet has made the mistake of trying to protect themselves by specifying everything that cannot be done in detail without considering how much the restrictions cover. A better approach would be to simplify, just stating that the subscriber must abide by applicable Hong Kong laws, and let the relevant authorities, the Police, OFTA the Obscene Publications Tribunal etc. as appropriate, do their job.
I invite Pacnet to take part in a reasoned discussion of their Terms and Conditions. If they do not object, I will publish their response, in full, as a linked follow-up to this article.
