More often than not, the terms and conditions offered by corporatesof company records. Wale Azeez reports. to their smaller partners are a major source of worry. But, lately, IBM seems to have become a greater cause of anxiety than most.
As exclusively revealed in PC Dealer (3 June), Big Blue recently changed the Ts&Cs of its IBM Business Partner Agreement to include a clause which demands partners make details of their company, contacts and revenue data available for whatever purposes IBM sees fit.
According to the letter issued by IBM, the amendment to the agreement insisted that IBM was able to pass on information to its 'related companies and third parties, including subcontractors and consultants'. The so-called related companies can in turn use this information or even transfer it to others as they wish.
Needless to say, the whole episode has thrown some partner relationships into disarray, as resellers refuse to sign the agreement until the offending clause has been amended. According to dealers, IBM said it was being forced to make such changes because of a European Union directive. It failed to say which.
Kevin Drew, MD at Triangle Computer Services, speculated that ineffectual European law was to blame. 'IBM is only doing what European Law is demanding of it. It is crass EU law all over again,' he commented last week.
Since then, industry and legal experts have pointed out that the directive in question is an item to be incorporated into the forthcoming revision of the UK Data Protection Act, effective from 25 October.
Before a company or individual can transfer information about employees or customers outside the EU, it has to show consent by way of a contract from the said customers. The directive also forbids the transfer of data to third countries that do not provide adequate protection levels. From 25 October, anyone in possession of personal data on any individual, for example, will need to adhere to this.
The US may not have signed up to the directive yet, but as a US conglomerate, IBM is obviously trying to tie up loose ends before it becomes legally obliged to do so. Presumably, it is courting the elusive consent-before-cut-off-date, since after such a time, its pursuit of every single partner for every transfer of data to a third party would become virtually impossible.
But is this the right way of going about things?
George Gardiner, IT law partner at Tarlo Lyons solicitors, thinks not.
He admitted that without sight of the original agreement, it was difficult to decide whether IBM was using its dominant position to obtain the data, but said there was still a case to be answered.
'There are issues that point to Articles 85 and 86 of the Treaty of Rome (concerning the restriction of competition within the common market, and practices which amount to the abuse of a dominant position in the common market), and the UK Restrictive Trade Practices Act of 1976. Also, there is a secondary issue: that of data protection and the validity of providing the extent to which that information can be provided.
'Personally, I would be a bit concerned in the partners' position. I would want to know what information IBM wants, what for, to whom it is being sent and if there is consent for each disclosure,' Gardiner said.
This is no more than the resellers want themselves. As one dealer commented: 'For a start, there are three words missing: with your permission.'
One incensed reseller expressed fear that any information he passed on to the vendor could be used against his company, unwittingly or otherwise, if it was passed on to a third party.
Such fears are not unprecedented. One IBM partner, a UK-based voice recognition software developer called AllVoice Computers, filed a complaint against the giant to the European Commision in January for alleged abuse of confidential information.
According to the 109-page complaint, IBM did contravene Articles 85 and 86 of the treaty and AllVoice is requesting an investigation into the vendor's activities. It alleged that IBM acquired AllVoice customer details as well as confidential product and marketing information by abusive means, using its dominant position.
It is difficult to see who is right or wrong in the whole transfer and ownership of information debate. But the fact remains that the current situation is a cause for concern among partners, who - like it or not - feel threatened by the might of the likes of Big Blue.
See feature on page 32.
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