As noted before, web agreements are commonly used to protect service providers and other website operators.  It follows that a provision in the terms of service agreement requires that consumers waive certain rights in exchange for the right to use Ancestry’s services. The unique part of Ancestry’s waiver provision, however, is its (attempted) application to consumers’ genetic relatives.  Like other parts of its agreements, Ancestry alleges that, by using their services, not only does the consumer waive certain legal rights but their genetic relatives do as well.  For instance, Ancestry’s agreements include an indemnity provision, which is common in online agreements.  An indemnity provision typically requires that a user agree to hold the company and its agents harmless for any damages that may occur as a result of use.  In Ancestry’s case, however, Ancestry requires that a user’s genetic relative must also hold the company harmless for any damages that Ancestry may cause unintentionally or purposefully.

Next, the agreement states that any consumer that is dissatisfied with the service has no remedies to cure except for discontinuation of Ancestry’s services.  Specifically, the “sole and exclusive remedy” is to terminate the use of Ancestry’s website and services.  And somehow, if the consumer insists on taking Ancestry to court, Ancestry preempts that by requiring consumers to agree to arbitration.  Unless the dispute refers to intellectual property or is a small claim, Ancestry requires consumers to resolve any other disagreements via arbitration.  Ancestry also tries to preempt any sort of class action lawsuits by stating that consumers may only bring claims against Ancestry in an individual capacity, they many not sue as a representative plaintiff or any class member.  Ancestry specifically warns against consolidated and representative actions.

While these waiver provisions are common, most courts frown upon complete deprivation of a consumer’s rights.  As such, Ancestry does note that its arbitration provisions do not preclude consumers from bringing action through federal, state, or local agencies.  Often, consumers may bring any egregious actions to the attention of government agencies when seeking relief.

Overall, while it remains to be seen whether or not Ancestry’s terms of service and privacy policy agreements will stand up in a court of law, it would behoove consumers to be aware of the potentially legally-binding rights Ancestry may have over one’s genetic DNA upon submission to their company.  Thus, if one is interested in having their DNA tested, they must be aware of the potential ownership, medical health privacy, and legal waiver issues that accompany such testing.

This blog article the final part in a three-part series discussing the privacy policies and terms of service/use agreements used by AncestryDNA (“Ancestry”).

More from this series: AncestryDNA’s Policies Come Under Scrutiny from Privacy Experts Health Information and Privacy Concerns with AncestryDNA’s Policies

For more information on this topic, please visit our Terms of Use Agreements service page, which is part of our Internet & eCommerce Practice.

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