Beware – LivingDNA Requires Customer to Indemnify Company to Download Raw Data

Update:  Please note that LivingDNA has replaced the Indemnity language referred to below.  You can read the update here.

Say what?

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.

Holy cow.

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.

Period.

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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38 thoughts on “Beware – LivingDNA Requires Customer to Indemnify Company to Download Raw Data

  1. Oh wow ! I am so glad I saw this post before I did anything.. Thank You for explaining.. yes I have tested elsewhere – this LivingDna will just sit and wait forever..
    again Thank you..

    • Hi Tery, I would like to assure you that our terms are no different from those of the other firms, we aim to be transparent and its clear that perhaps the terms of other companies were not understood in the past. We will post in full but rest assured there is nothing different here, Warm regards David

      • Maybe other companies have rules, but not to the point where a person pays to have DNA broken down for research purposes- then feel threatened if they use their own DNA results. There is no guarantee on who matches or doesn’t match- that is the understanding of research. Anyway I really have no reason to download my DNA – since all is shown is 100% European. It isn’t even broken down – when the other companies have my British Isles listed. I may look at it again down the road –
        Thanks anyway –

    • Hi Terrry, we break down ancestry into regions of the British Isles as well as regions across Europe, we’re planning an interface update but at the moment its the the + sign on the Family ancestry map and if you press this you can get all the details of where specifically your ancestry is from. Thanks also for the feedback on the terms I’ll raise that with the team. Many thanks David

  2. That doesn’t seem like a viable business set-up for LivingDNA. If all the savy people like you start spreading the word, no one will ever test with them again. They might have to revise their legal verbiage.

  3. You have got to be kidding. No company ever offered exact DNA science. This is fear mongering plain and simple. It is ridiculous to think that 2 people who match, took the test, read the disclosures, have grounds to hold anyone responsible for anything. Anyone who tests knows the unknown may surface, or the secret. Yet both tested. Not knowing is no defense, “should have known” the possibility is the standard.

    • The problem is that one person has already filed a frivolous lawsuit in this industry and you have to agree to pay for any “claims” against LivingDNA as a result of you downloading your results. They don’t have to be valid claims. And some people make a habit of filing frivolous lawsuits. It’s a very real risk to the consumer with this verbiage. Whether it’s right or not is another topic entirely.

  4. I can see no reason or benefit to wasting the money to test with LivingDNA considering this information. I wonder how many lawsuits they have had or had threatened that they have decided on this policy. Considering this policy I could not possible recommend this company to anyone.

    • Dear Aquila, we have had no law suits, the term is the same as the other leading companies as the data is yours and you can do what you wish with the data if you download it. I would be happy to expand further, but there is nothing new in our terms compared to the industry, Warm Regards David

      • Then why is it even necessary for your customers to indemnify your company for something that hasn’t and, evidently, isn’t likely to happen. I still would not purchase a DNA test from any company at this time because of terms like this.

  5. I agree with Aquila, above, save your money. I already sent mine in, but will not be sharing it. Roberta, thank you for telling us this. This is just a terrible way to do business, for any company. I am very disappointed in Living DNA and I hope they realize that they need to do this in a more appropriate way that sock it to the customer.

    • HI Kathleen, our policies are inline with the industry and whilst everything can be interpreted in different ways this is not the intention of our terms. The intention in the consent for raw DNA data downloads is for our customers to clearly understand the responsibility they have and the care they should take with their data. Warm Regards David @ Living DNA

  6. Thank you so much for the warning Roberta! This clause might have escaped me – fortunately I have to wait so long for my LD test results (mine have been in the pot for nearly 3 months so far) that I was able to find this in time!
    Sadly I guess that if we want our raw DNA results as read by this new chip/platform that they are using, we’ll just have to pay another company who ends up adopting the same chip for another test. Makes LivingDNA a waste of money IMO.

    After reading your review of your own LD ethnicity results, and now this ridiculous legal rope trick, I now regret testing with LivingDNA, and I don’t even know my results yet.

    • Hi Tyler,

      The intention in the consent for raw DNA data downloads is for our customers to clearly understand the responsibility they have and the care they should take with their data. This is a standard procedure within industries worldwide including the indemnities by other firms in the DNA testing industry and we’ll be reviewing this matter with our legal team over the next few days.

      Warm Regards

      David
      MD – Living DNA

    • The question is do you have to indemnify them if you download your DNA, and it’s no longer on their site, and you do something else with it that makes someone unhappy and they sue Ancestry for performing your test? I don’t read Ancestry’s indemnification that way, but if anyone has any concerns, a lawyer’s opinion is always best.

      • Ancestry’s does seem to be much more general in nature – basically “your use of and access to the Website and Services”, etc.

      • Hi Mo, the advice from our legal team is that the terms on Ancestry cover everything including downloading data and what is done with that data, this is broader than Living DNA, however the intention of all firms is to highlight the importance of being careful and considered in what you do with your DNA. We’re discussing wording with our legal team this week, Warm Regards David – MD Living DNA

  7. Roberta –
    In Britain, the losing party pays the legal expenses of the winning party so perhaps they have a different perspective there. Two countries divided by a common language …
    Also you can upload the living DNA results to the beta Genesis area at GEDmatch
    But this is still a valuable test for those with British roots in my opinion
    Kitty

  8. Dear Roberta,
    Living DNA’s wording seems quite similar to the terms and conditions written by the other major DNA testing companies. I am inserting them below for comparison.

    23andMe: https://www.23andme.com/legal/tos/

    “You agree to defend and hold 23andMe, and its subsidiaries, affiliates, officers, agents, contractors, partners, employees, successors, and assigns harmless from any claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of User Content you submit, post to, or transmit through the Service; your use of the Service; your connection to the Service; your violation of the TOS; or your violation of any rights of another. If you have submitted a saliva sample or otherwise provided your own Genetic Information, you will defend and hold harmless 23andMe, its employees, contractors, successors, and assigns from any liability arising out of the use or disclosure of any information obtained from genotyping your saliva sample and/or analyzing your Genetic Information, which is disclosed to you consistent with our Privacy Statement or results from any third-party add-ons to tools we provide. In addition, if you choose to provide your Genetic and/or Self-Reported Information to third parties – whether individuals to whom you facilitate access, intentionally or inadvertently, or to third parties for diagnostic or other purposes – you agree to defend and hold harmless 23andMe, its employees, contractors, successors, and assigns from any and all liability arising from such disclosure or use of your Genetic and/or Self-Reported Information.”

    Ancestry.com: http://www.ancestry.ca/cs/legal/termsandconditions

    “You agree to defend, indemnify and hold harmless AncestryDNA, its affiliates, officers, directors, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, costs or expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Website and Services; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your User Provided Content caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the Website and Services.”

    MyHeritage: https://www.myheritage.com/FP/Company/popup.php?p=terms_conditions

    “By using the DNA Services, you acknowledge that you may learn information you do not anticipate from the DNA Results and from the DNA Reports, which may evoke strong emotions and has the potential to alter your life and worldview. You may discover things about yourself that trouble you and that you may not have the ability to control or
    change (e.g., your father is not genetically your father, or your ethnicity is not what you thought it is, or surprising facts related to your ancestry). These outcomes could have social, legal, or economic implications. You further acknowledge that your use of the DNA Services and receipt of the resulting DNA Reports may have serious implications not only for you, but also for your immediate or other family members, since they share some of your DNA. If you are in any way concerned about any such potential implications, DO NOT USE the DNA Services. You agree to indemnify and hold MyHeritage, its subsidiaries, employees, directors, agents, licensors, managers, affiliates and any third party acting on our behalf, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made due to or arising out of your use of or access to the DNA Services and any implications of such use.”

    Family Tree DNA: https://www.familytreedna.com/my/family-finder/downloads.aspx

    “We are committed to protecting the privacy of our customers. By downloading any raw data or reports, you hereby indicate that you are the owner of that data or have permission to download the data, and you further indicate your understanding that Family Tree DNA cannot in any way guarantee the security or privacy of your downloaded data. Furthermore, you understand that by uploading your raw data to a third party application and linking it to your name, Family Tree DNA kit number, email address, or any other identifying information, the security of your raw data and record is further put at risk and may lead to the violation of Family Tree DNA Privacy Policy. By downloading your raw data, you assume the liability for any breach of privacy and release Family Tree DNA from any privacy violation that results either directly or indirectly from the downloaded raw data and/or upload to a third party application.”

    • They sent something identical to this earlier this evening. One difference is that the other companies have their verbiage in the original agreement, not when a customer goes to download their results, as a surprise. Also, most of these are in the context of using the vendors services and tools, not on a third party site.

      • Dear Roberta,
        FTDNA’s verbiage appears when you go to download the Family Finder raw data files. The verbiage is there for anyone to read whenever they download their raw data files. It appears to me that the intent of what has been written by FTDNA’s attorneys is very similar to the intent of what has been written by Living DNA’s attorneys. Personally, I think that the Living DNA test is a very interesting test and I definitely have downloaded my raw data file from Living DNA. I hope that Living DNA continues to develop new features that will be of benefit to genetic genealogists.
        Sincerely,
        Tim Janzen

  9. Roberta
    Thanks for this note.
    I have tested myself and others with a number of companies including LivingDNA.
    Our McKee line is R-L371 with unique marker values indicating our line to be of Welsh origin, an unusual place of origin for a McKee family line.
    It was my hope that being based on the POBI study we would get additional insight into our origin.
    I find their report of great interest and will proceed with more caution than in the past regarding my use of downloads of raw data from all sources.
    Thanks very much for the reminder, it is very easy to get lost in the excitement of the project, proceeding into new areas with abandon. We all need occasional reminders.

    Keep up the great work.

    Sincerely,
    Thomas R McKee, PhD

    • Yes, Tom, you’re absolutely right. It is easy. Living DNA has modified their terms, today, but that doesn’t change the fact that we do need to always proceed with caution and thought.

  10. Which country’s laws does Living DNA company say will prevail?? UK, EU, or clients’ home country of record??

  11. Pingback: LivingDNA Replaces Download Terms | DNAeXplained – Genetic Genealogy

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