The user agreement implies the "overlord clause" Whether the collection of personal information of Yugu Technology steps on the "red line"
As soon as you register the APP, you will receive a "bombardment" of relevant marketing calls, which makes many consumers unbearable. This situation also appears in Hangzhou Yugu Technology Co., Ltd. (hereinafter referred to as "Yugu Technology"), which is sprinting for the GEM IPO. Yugu technology mainly for electric two-wheeled vehicle users to provide charging and replacement services, in order to further experience the products and services provided by Yugu technology, Beijing Business Daily reporter downloaded one of the company's main APP "this lithium battery", however, as soon as the registration was completed, there were sales staff of the company to call the reporter to telemarketing preferential activities. Reading the "User Agreement", a reporter from Beijing Business Daily found that Yugu Technology "compliant" the above behavior through standard terms, however, a number of lawyers told the Beijing Business Daily reporter that the relevant content in the company's "User Agreement" has belonged to the "overlord clause", and consumers can say "no".
Marketing calls are coming
Yugu Technology mainly provides consumers with battery swap services through the battery swap business system "This Lithium Battery Swap".
According to the official website of the Shenzhen Stock Exchange, the IPO of Yugu Technology GEM was accepted on June 19 and has recently entered the second round of inquiry.
According to the prospectus, Yugu Technology is a leading provider of electric two-wheeled vehicle charging and swapping equipment and services in China, and its main products and services are battery swapping services and charging and swapping equipment. In the first half of this year, the battery swap service business accounted for more than 98%.
The "This Lithium Battery Swap" APP is a terminal tool for users to use battery swap services, which can meet the user's all-round battery swap needs. In order to experience the battery swap service of Yugu Technology, a reporter from Beijing Business Daily downloaded the "This Lithium Battery Swap" APP. If you want to use the app normally, you need to register an account with your mobile phone number first, and you need to agree to the company's "Privacy Policy" and "User Agreement".
In the prospectus of Yugu Technology, the company said that the purpose of collecting the user's mobile phone number in the registration process is to complete the registration and login of the account. Is the further use of the collected personal information for marketing purposes that exceed the purpose for which it was collected?
When a reporter from Beijing Business Daily asked about "whether the company will carry out marketing activities by collecting personal information", Yugu Technology replied that the company's various business links are mainly collected in the registration link, finding nearby available battery swap cabinets and charging equipment, offline battery swapping, system operation guarantee, etc., The main purpose of collection and use is to use users to find the location information of nearby available battery swap and charging equipment, ensure the normal and stable operation of the software, etc., in addition to being used for the main business related links, there is no user who uses to obtain and keep it, When Customer Data is used for commercial purposes.
Unobtrusive standard clauses
By reading the "User Agreement" provided by the "This Lithium Battery" APP when registering, a reporter from Beijing Business Daily found that Yugu Technology used standard terms to "comply" marketing activities in the user agreement.
According to the "User Agreement", "the user agrees that we have the right to place various commercial advertisements or any other type of commercial information in various ways in the process of providing network services, and the user agrees to accept our email or other means to send product promotions or other commercial information to the user", and does not give the user the opportunity to refuse, if he does not agree, he cannot register to use the APP.
The compliance of this situation has been questioned by a number of lawyers. Lu Dingliang, a partner at Beijing Jingshi Law Firm, said in an interview with Beijing Business Daily that it is non-compliant for app operators to not separately obtain consumers' express consent on whether to agree to receive commercial information in terms of privacy agreements and registration procedures. APP operators cannot imply that consumers "agree to receive commercial information" in a blanket agreement. The APP operator's blanket agreement acquiesces that the consumer "agrees to receive commercial information", which may be recognized as an overlord standard clause.
Lu Dingliang further said that even if consumers agree to receive commercial information, APP operators should provide consumers with a significant, simple and free way to refuse to continue to receive commercial information, so that consumers have the right to opt out of receiving commercial information at any time. In addition, APP operators cannot replace consumers' consent in the form of publicity or consumer acquiescence, nor can they simply and rudely adopt a single service model of "refusing to provide services if they do not agree". In the event of any violation of the above-mentioned contents, the terms and conditions may not be effective against the consumer.
Meng Bo, a lawyer and financial commentator at Beijing Jingshi Law Firm, analyzed from the perspective of standard clauses that according to the provisions of paragraphs 2 and 3 of Article 26 of the Law on the Protection of Consumer Rights and Interests, business operators shall not make unfair and unreasonable provisions to consumers such as excluding or restricting consumer rights, reducing or exempting business operators' responsibilities, or increasing consumer responsibilities by means of standard clauses, and shall not use standard terms and technical means to force transactions. If the standard clause contains the content listed in the preceding paragraph, the content shall be invalid.
A legal industry source, who did not want to be named, also mentioned that if APP merchants force users to agree to receive marketing messages, otherwise they cannot use their services, which deprives consumers of their right to choose, puts consumers at a disadvantage in the agreement, and does not comply with the principle of fairness.
Have a "criminal record" of violating personal information collection rules
It is worth mentioning that in terms of personal information collection, Yugu Technology had a "criminal record", and was notified by the Zhejiang Provincial Communications Administration for collecting personal information in violation of regulations and exceeding the scope of personal information, requiring the implementation of rectification.
It is understood that in September 2021, the Ministry of Industry and Information Technology announced the "APP Notice on Infringement of User Rights and Interests" (hereinafter referred to as the "Circular"), and Yugu Technology was included in the "List of Application Software with Problems Notified by Zhejiang Provincial Communications Administration". The company's APP "This Lithium Battery Swap" has collected personal information in violation of regulations and exceeded the scope of personal information, and was notified by the Zhejiang Provincial Communications Administration and required to implement rectification.
Specifically, the problems existing in Yugu Technology at that time included that the SDK began to collect personal information before obtaining the user's consent or opened the permission to collect personal information, and when applying for the collection of personal sensitive information such as the user's ID number, the user was not informed of its purpose synchronously, or the purpose was unclear and difficult to understand.
In response to the rectification of the above problems, Yugu Technology replied to the reporter of Beijing Business Daily that after the company received the "Notice", it actively implemented the relevant problems and completed the rectification within the time limit required by the "Notice", and the relevant violations have been terminated.
In addition, in April 2023, Yugu Technology received the "Detection Problem List" of the "This Lithium Battery Swap" APP and the Charging Zebra Mini Program through the national APP technology testing platform, and the national APP technology testing platform believes that the "This Lithium Battery Swap" APP has the problems of mandatory, frequent, and excessive requests for permissions, as well as the problems of mandatory, frequent, and excessive requests for permissions and illegal collection of personal information in the Charging Small Zebra Mini Program.
Yugu Technology said that according to the "This Lithium Battery Swap" APP and the "Retest Problem List" of the charging zebra applet issued by the national APP technology testing platform, it is confirmed that the problems mentioned in the "Test Problem List" have been rectified. The company has not been criticized or punished by the Ministry of Industry and Information Technology and other competent authorities.
Beijing Business Daily reporter Ding Ning