Who is liable for data loss in the cloud?

Who is liable for data loss in the cloud?

The cloud is becoming increasingly popular. Particularly as online storage with over-all access, these services are now very popular - both with companies and private individuals. No wonder, the storage offers are often even free up to a certain volume, such as Google Drive, Microsoft's Skydrive, Amazon's Cloud Drive, Dropbox or the Media Center as part of the Telekom Cloud.

Data loss in the cloud

But, what few people think about: what happens if the cloud loses data? Who is liable if important documents (such as company records) or private treasures (such as personal pictures) are lost? Of course, the service providers of the cloud services do not want to take responsibility for this. This is usually stated in the terms of use or general terms and conditions (GTC). Liability is often even completely excluded there. For example, the terms and conditions of the popular service Evernote state that no liability is assumed for data security and that customers use the service at their own risk. By registering, the customer has accepted these terms and conditions. So, in principle, he must also abide by them. Or?

Well, not quite. According to the law of our country, a complete exclusion of liability in the terms and conditions is generally not possible at all. If our law applies, then the provider is also liable - at least in cases of intent and gross negligence. Various terms and conditions already provide for the application of this law, such as Evernote or Skydrive. Even if this is not the case, the following applies: As soon as the customer acts as a consumer, he can usually make use of the consumer protection law of his home country. If this provides for certain mandatory rules, these also apply, regardless of what the GTC say. Even then, our liability law is applicable.

Cloud providers

But then comes the next problem: Many providers are not located in the same country as you. So you might have to sue Microsoft in the USA according to Californian law. With a US lawyer and all the trimmings. This is not worth it in 99 percent of cases. And: If there are no more data backups, even the best claim is useless. The data is lost, you can't get it back - at best, you can get compensation. But how does this measure up? It's not easy to quantify how valuable personal images are, for example. In addition, the courts may well assume contributory negligence on the part of the customer if he has not backed up his data himself. In that case, the claim may not be successful at all.

Cloud services are useful and helpful. However, in addition to the major data protection issues due to the fact that most data is stored in the USA and various services can access this data there, the risk of data loss must always be taken into account. Data should not be uploaded there without your own backups. It is not an external hard drive in the network, but at best a service that enables access to certain data from anywhere in the world, which is ultimately the added value.

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