Update: Please note that LivingDNA has replaced the Indemnity language referred to below. You can read the update here.
Yep, you read that right.
I discovered that LivingDNA now provides a raw data download for their customers, with a huge, and I mean HUGE, caveat – indemnification of the company (LivingDNA) if they are sued as a result of your download of your DNA data.
Yes, seriously! This is not April 1st.
While this may sound like a trivial complication, it’s not, given that one of the reasons genealogists purchase ethnicity tests is to download the data and transfer the results to other companies or services for additional ethnicity results or matches to other testers, a feature not provided by LivingDNA.
Let’s walk through the download steps and take a look.
At LivingDNA, your raw data is now available on the left hand side of your page. Click on “Download Raw Data” to view.
You will then see the following screen, captured in two graphics, below. Please note that you can click to enlarge any graphic.
Do NOT do anything else until you READ and understand the entire contents of the Download Raw Data page.
LivingDNA provides what I would consider typical verbiage and also some appropriate cautions about how you may or may not match people you expect to match, and you may match people you don’t expect to match. In other words, they are gracefully trying to say you may encounter a misattributed parentage, either in your line or the line of someone you expect to match. Given that LivingDNA doesn’t provide matching services, this is especially important for their customers to understand.
But then comes the (thankfully) bolded bombshell. Bolding is theirs, not mine, although I would also add the color red.
By choosing to download your data you agree to indemnify (which broadly means to reimburse) Living DNA and its related companies and their directors and employees for any losses, damages or costs they incur as a result of any claims being made against them which relate to you downloading your data and the use by you of your data, or as a result of you having shared your data with any third party.
Not only are you indemnifying LivingDNA, you’re also indemnifying their directors and employees and related companies. Furthermore, “claims” could mean that someone doesn’t even need to file a lawsuit. As I said, I’m not an attorney, but I’m a savvy enough consumer to know this isn’t good for me.
You must click the “consent” box in order to proceed.
The consent says very clearly that by downloading, you agree to provide indemnity to LivingDNA. Bolding and red, both mine, below.
I have read the information provided about gaining access to my genetic data, and in particular I understand that my use of my data is my responsibility and that by downloading my data, I am providing an indemnity to Living DNA.
Merriam-Webster says this about indemnify:
I’m not a lawyer, but let me explain one thing further about indemnification. It includes the costs of defense – meaning the lawyers, and the lawyers travel, etc. Lawyer fees alone can run into tens of thousands of dollars, and more. Currently intellectual property attorneys bill at the rate of $450 per hour, or did last year, and defense preparations take hundreds of hours. If this makes you shake in your shoes, it should!
So let me say this in plain English. If you upload your LivingDNA file to any third party site and you match someone who is angry that your match revealed (or helped to reveal) that their father is not their father (for example), but is instead your father, or uncle, or cousin, etc., and they decide to sue LivingDNA for running your test – you have to pay for LivingDNA to defend themselves against the lawsuit – no matter how frivolous and no matter the outcome. I would think this would also extend to someone utilizing numerous matches to discover a link to unknown parentage if someone is unhappy about the outcome. In essence, if anyone sues LivingDNA or make a claim over anything having to do with your test, you have agreed to pay for LivingDNA to defend themselves, affiliated companies, employees and directors, even if the suing party loses. And if the suing party wins, you get to pay for that too.
The bottom line is that you have to agree that you are responsible for whatever after downloading your DNA. “Whatever” means anything that you can think of, and probably several things you can’t. The example above is by no means a comprehensive list of what could go wrong and cause you a massive legal headache. If anything goes wrong after you download your DNA, you’re responsible.
Consider yourself warned.
There is absolutely no upside or benefit in this verbiage to you. None. Nada.
So what am I going to do with my LivingDNA results? Not one single solitary thing. The ante is just too large. Thankfully, I’ve already tested with the other vendors so I don’t need to upload my results from LivingDNA anyplace.
That’s exactly what I recommend you do too – nothing. Don’t even download. Personally, I would simply test elsewhere, all things considered.
You cannot control how your matches utilize the fact that you match and what they do with that information. It will be interesting to see if LivingDNA will require their customers to indemnify them against the results of matches at their own company if they add the matching feature as they have stated they plan to do.
Given that I’m not an attorney, if you are considering downloading your LivingDNA data and uploading elsewhere, I strongly, STRONGLY, recommend that you contact an attorney and obtain a professional opinion.
Today, as I write this, I know that Family Tree DNA and GedMatch don’t accept LivingDNA files as a standard upload because the chip LivingDNA uses is different than any other vendor.
Even if everyone accepted LivingDNA files, in my opinion, given the LivingDNA indemnity language, if you want to upload your results to any site, you would be far safer to test a second time with one of the three major vendors and avoid the potential indemnity headache.
Click here to read my LivingDNA Product Review that was written a month ago, before the data download become available.
You can see which vendors accept whose transfer files in the article, Autosomal DNA Transfers – Which Companies Accept Which Tests?
Within the next few days, I’ll be publishing an article titled, “Which Ethnicity Test is Best?,” so stay tuned.
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