Network: You can't have lost my files!
How can you best protect yourself against accidental data loss? By George Cole
Monday 24 June 1996
I'd taken my PC into my Apple dealer for several repair jobs, which would only take a couple of days to fix, they said. Now more than 300 megabytes of data had been wiped - all my articles, CompuServe files, Net software, operating system folder, fax/modem software, wordprocessor, invoice records, utilities (plus a few games).
"Are you sure?" I croaked, "Can't you get it back?"
"Well, I've tried several things, but nothing's happening. I'll call Apple's technical department and get back to you."
Depressed, I called a friend: "Nah, I bet he's just messed up the hard disk inde," he said. "He'll get it back using some utilities - you have got all your data backed up, haven't you?"
Backing up is rather like safe sex: everyone knows it should be practised, but many people don't follow their own convictions. Fortunately, I have a second Apple Mac which has most of my main software on it. It also has CompuServe software, so I was able to work as normal and file my copy electronically.
After my experience, my advice to anyone whose livelihood depends on their PC, would be to get a back-up machine. It took my dealer five weeks to sort out the problems.
When the dealer called back to confirm the data was lost, I got thinking about the law. What's the position if a repairer trashes your hard disk data?
"You have a contractual relationship with the dealer, even if you haven't signed anything," says Vanessa Marsland, a partner at Clifford Chance. "That includes a duty of reasonable care. This is breached if they lose your data, and you should be compensated."
The Supply of Goods and Services Act of 1982 obliges companies to use reasonable skill and care. Dig a little deeper and you find some legal grey areas. For example, re-installing data and setting up the computer could take all day.
Could I claim for my lost time? "You can only claim for any actual financial loss suffered. Courts are reluctant to compensate for wasted time," says Alison Lindley, a lawyer at the Consumers' Association.
In my case, there was a happy ending: my dealer collected all my back- up disks and re-installed the data, and two employees spent several hours at my home checking everything was fine. You may not be so lucky, especially if your dealer insists customers sign a disclaimer that absolves the company from any blame should they lose your data.
No one knows if this is legal. Last July, the Unfair Terms in Consumer Contracts Regulations became law. The regulations, which are policed by the Office of Fair Trading, are designed to put a stop to nasty small- print clauses such as: "We can vary the price at will."
Although the OFT can ask companies to remove unfair clauses from future contracts and can take them court, it can't act on individual cases. What's more, data loss get-out clauses have not been tested in court. "If a member of the public thinks they have come across an unfair contract, they should send it to us," says the OFT.
Ms Lindley suggests that if confronted by what you think is an unfair data loss term in a contract, you should ask if you can amend it before signing and then cross out the relevant passage. Also write on the contract, "This term has been deleted." The OFT suggests shopping around, but this may not be possible if your PC is being repaired under warranty.
Before buying a new computer it makes good sense to find out what the dealer's position is on accidental data loss. If you're not happy with the answer, move on, and while you're at it, write to the managing director telling him why he lost your business. If a dealer says he does replace any lost data, get this in writing and keep the paper safe.
We consumers, however, have our responsibilities. We should have back- up disks of all our data, and if we need a PC for our work, we should have a support procedure in place. If your dealer loses your data, don't get angry. Even the most careful, conscientious worker has accidents, and a bolshy customer is likely to be put at the back of any repair queue. Instead, you should politely but firmly insist that they re-install the lost data and check everything is well. If the dealer refuses, flash that bit of paper in front of them. It should do the trick.
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