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Background Information

Britain has recently finished BREXIT (after years of painstaking decision making about pretty much nothing) and I was wondering whether Stack Exchange's EU specific terms still apply to Britain.

Example of EU specific terms

If you are located within the European Union, you must be at least 16 years old to access or use the Network or Services, including without limitation to complete a Stack Overflow Account Registration. By accessing or using the Services or the Network in any manner, you represent and warrant that you are at least 16 years of age. If you are under 16 years old, you may not, under any circumstances or for any reason, access or use the Services or Network in any manner, and may not provide any personal information to or on the Services or Network (including, for example, a name, address, telephone number or email address).

Questions

Do Stack Exchange's EU specific terms still apply to Britain?

If so, will they ever stop applying to Britain?

  • 4
    Interesting question. Not so many years ago, some film companies had sold rights to German TV companies to transmit their films for five years anywhere within the Federal Republic of Germany. And then suddenly the population of the Federal Republic of Germany grew overnight by almost a third. Obviously the film companies wanted more money, while the TV companies didn't want to pay. Can't remember the outcome. – gnasher729 Feb 6 at 21:12
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    Stack Exchange has perhaps overlooked the fact that some EU law, including the GDPR, applies to some countries that are not in the EU. The terms of service allow 13-to-15-year-olds in Iceland, Norway, and Liechtenstein to create accounts. Do they really mean to do that? – phoog Feb 6 at 22:00
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    @phoog: The GDPR doesn't actually require countries to have a minimum of 16; that's only the default. The GDPR mandated minimum is 13; between 13 and 16 it's up to the Member States, and by extension also to Iceland, Norway and Liechtenstein. More than half the states do not use the default. Norway uses 13 – MSalters Feb 7 at 0:00
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    @MSalters but we're talking about the terms of service, not any country's requirements. The terms of service allow 13-15 year olds to create accounts everywhere except for the EU, which means that 13-15 year olds in the EEA and the UK can create accounts. – phoog Feb 7 at 13:43
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No.

The UK is no longer in the EU, and the terms of service, which are probably drafted poorly, fail to include non-EU countries that are subject to EU law, such as Iceland, Liechtenstein, and Norway.

This oversight means that the UK is also not included as of the beginning of February 2020 when it ceased to be a member of the European Union.

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  • So essentially, if they had worded the TOS the way they presumably meant them to be, they should include Iceland, Liechtenstein and Norway and similarly cover the UK during the transition period. But they didn't word their TOS properly, so the EU regulations ceased to apply to the UK on February first. – quarague Feb 7 at 8:09
  • @quarague Which EU regulations apply in the UK is defined by UK parliament not by stackexchange. If stackexchange's terms violate UK law then stackexchange's business and staff are likely subject to appropriate legal sanctions and criminal prosecution in the UK. As I understand it, generally EU regulations are incorporated into UK law, becoming part of UK law until UK Parliament changes the law. – RedGrittyBrick Feb 7 at 11:19
  • @quarague I agree with your comment except for the last clause: the wording of the Stack Exchange terms of service has no effect on the application of EU regulations in the UK. – phoog Feb 7 at 13:45
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    @RedGrittyBrick I don't believe there are any criminal penalties for GDPR violations, only civil penalties. The last sentence of your comment confuses directives with regulations. The former are to be transposed into national law, but the latter are directly applicable. The R in GDPR is for "regulation," so it is directly applicable. However, I have heard that there is nonetheless a substantially similar UK law, although I have not looked into it. – phoog Feb 7 at 13:49
  • Oops, mistakenly tried to edit wrong thing. Explicit wording in Withdrawal Acts 2018 and 2020 and Data Protection Act 2018 - Criminal Offences suggest many or most EU Regulations and Directives are now explicitly made part of UK law and that matters covered by GDPR may be part of criminal law (not sure about this without reading whole thing but if not, why mentioned under Criminal Offences?). – RedGrittyBrick Feb 7 at 15:26
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There seems to be no case for confusion here. The UK already had a legal minimum age of 13, as allowed (but not mandated) by the GDPR. Companies did have the freedom to set a higher minimum age, as SE did. If they set a a higher minimum age, companies also had the freedom to later lower that.

By setting a minimum age of 16 only for EU countries, SE effectively lowered the minimum age for UK subscribers from 16 to 13 after Brexit. SE could (at its discretion) have done this even before Brexit.

Arguing otherwise would require an interpretation contrary to the text of the TOS. There can be legal reasons to do so, for instance if the text was not originally on violation of the law, but after a law change it is. In this particular case however the literal meaning (EU member) does not require such a contradiction.

Note that this TOS applies to a contract. The only third party which could bring a case would be the legal guardian(s) of the minor in the UK. That case would be that SE illegally entered into the contract in violation of UK law (which happens to be derived from the GDPR). There's no such violation if the minor is over 13. The guardian can't argue that the company broke its own TOS.

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    I don't see how this answers the question. This discusses whether the change in the effect of the TOS in the UK complies with the GDPR, but the question is whether the effect of the TOS has in fact changed. The whole discussion assumes that the age restriction is in place solely because of the GDPR, but we do not actually know whether that's true. – phoog Feb 7 at 14:13
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Right now: yes

There is a transitional period until 31 December 2020 where EU law applicable to the UK continues to apply as if the UK were still a member even though they aren’t. After that, no but presumably SO will have modified their TOS. That’s what the transition is for.

Further, any contract must be interpreted in light of what a reasonable person in the parties positions would understand. It’s reasonable to assume that this clause is there to comply with some unnamed EU law. EU law still applies in the UK so it’s reasonable to assume that it’s meant to apply to users in the UK.

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    I believe this is incorrect. EU law also applies in three EEA countries, but the terms of service are poorly drafted and fail to include those countries. The same is true of the UK. The UK is not "considered to be part of the EU" for any purpose; it has become a non-EU country in which EU law continues to apply for some time. – phoog Feb 6 at 22:01
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    @DaleM: The "unnamed EU law" would be the GDPR, which only defaults to 16, but is implemented in the UK as a minimum of 13, so a more reasonable assumption would be that the UK's national law now applies. – MSalters Feb 7 at 0:25
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    @phoog: I agree that the age restriction did not follow from EU law, which is exactly why I argued that it's irrelevant to which degree the UK is still bound by EU law. The TOS is worded in terms of EU membership, which has ended. That literal interpretation is reasonable as it's not in conflict with UK law post-Brexit. – MSalters Feb 7 at 14:13
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    @MSalters but the question is not about whether the UK is bound by EU law. The question is about whether the age restriction in the TOS applies to people in the UK. – phoog Feb 7 at 15:43
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    @phoog: Why would they? The TOS has a very well-defined term (located in the EU), which does not apply to people in the UK anymore than it does to people in the US. The reverse case could have been hard (country joins the EU, are existing users between 13-16 affected?). But in this case the text is utterly clear. New users located in the UK can enroll if they're born after 2007-01-31. – MSalters Feb 7 at 16:00

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