Disclaimer: the content of this post is a brief overview of this area of law and is intended to be used for information purposes only. It does not constitute legal advice. Before you do anything crazy with your phone, do proper research about the risks of your planned actions, and if you find yourself in a position where you need to assert your statutory rights against an uncooperative manufacturer or telco, please seek further information from your local consumer protection agency. Details can be found on the ACCC’s website.

When Motorola and Telstra announced the RAZR HD, the big question floating around the internets (at least among the Ausdroid team) was whether the bootloader would be unlockable. After all, in the United States, Motorola have produced the Droid Razr HD Dev Edition (despite its extra fun name, it’s the same phone) that has an unlockable bootloader, but taking advantage of this feature will void the device’s warranty. Telstra are trying the same policy here – they’ll unlock the device, but only if you agree to void your warranty. Unlike America though, who wouldn’t know consumer protection laws if you slapped them in the country’s (metaphorical) face, Australia has some of the most awesome consumer protection laws in the world, which make such claims as ‘voiding the warranty’ ridiculous, not to mention prima facie unlawful.

Australia’s new-fangled Consumer Law grants a number of protections to consumers in respect of purchases of goods, which together amount to a ‘reasonable warranty’ over those goods. This statutory warranty cannot be waived or contracted away by consumers, and it is illegal for a vendor of goods to claim that it can. This means that any agreement by a consumer to give up their warranty in exchange for their device to be unlocked is of no effect. Of course, if you stab a screwdriver through your phone, you can’t demand that it be replaced under warranty, but it might surprise you that the stabbing itself doesn’t void your warranty. It’s just that the damage was caused by your actions, rather than a defect in the device itself.

Warranties exist to protect against defects in the goods being sold, whether the defect is apparent a week after the device is bought, or whether it manifests itself 23 months into your contract. For example, if you have the bootloader unlocked, and it turns out later that the glue used to hold your device’s display assembly together proves defective and the device’s touchscreen becomes unresponsive, you would still be entitled to a repair or replacement of the defective device. The more unrelated the defect is to what you might have done to your phone as a result of unlocking it, the easier it will be for you to assert your warranty claim.

To summarise:

  1. Don’t stab your phone with a screwdriver. No one will help you.
  2. You cannot agree to waive your statutory rights, and it is unlawful for a vendor to misrepresent the nature of these rights.
  3. If a carrier or manufacturer is refusing to honour your warranty, contact your local consumer protection agency. I’ve found that in Victoria, often the mere mention of Consumer Affairs is enough to get what you want.
  • Alex

    Good read.
    Both funny and informative. I had a good laugh about the screwdriver.

  • dazweeja

    It’s more problematic when dealing with internal components though. For example, if your phone is randomly rebooting or switching off and it is actually a physical fault (eg. motherboard, CPU), you might find it difficult to prove that it’s unrelated to unlocking the bootloader if the manufacturer chooses to challenge it. They don’t know whether you have overclocked your CPU (generating excess heat) and you can’t prove that you didn’t. I appreciate the clarification regarding other physical faults though.

    • Greg

      IANAL but I might suggest that its the flashing of custom firmware that is the thing that puts your electronic components at risk. Unlocking your bootloader has no other side-effects.

      And flashing stock ROMs – eg to bypass OTA rollouts or remove carrier customisations should be (at least arguably) safe. Beyond that you may have a tough time getting your warranty upheld.

      • dazweeja

        Sure, but unless you leave the custom firmware on the phone, the manufacturer only knows that you have unlocked the bootloader. It is this act that concerns them because you have made the flashing of custom firmware a possibility. If they choose to deny you warranty for a fault that could have been caused by overclocking (heat), there is no way for you to prove that you didn’t do it if you have unlocked your bootloader. You cannot prove that it was not your actions that led to the fault. The legal question is – you can’t sign away your warranty but can you sign away the benefit of the doubt in a situation where it *could* have been your actions that caused the fault?

        I wasn’t suggesting that the act of unlocking the bootloader could physically damage your phone.

      • dazweeja

        Sure, but unless you leave the custom firmware on the phone, the manufacturer only knows that you have unlocked the bootloader. It is this act that concerns them because you have made the flashing of custom firmware a possibility. If they choose to deny you warranty for a fault that could have been caused by overclocking (heat), there is no way for you to prove that you didn’t do it if you have unlocked your bootloader. You cannot prove that it was not your actions that led to the fault. The legal question is – you can’t sign away your warranty but can you sign away the benefit of the doubt in a situation where it *could* have been your actions that caused the fault?

        I wasn’t suggesting that the act of unlocking the bootloader could physically damage your phone.

    • James Finnigan

      Exactly. And this is how they’ll try to get out of it. Best thing to do in a case like this would be to see if you can find reports on the internet of similar problems. If other people are having the same problem, it’ll make it harder to dismiss you, and will definitely give Consumer Affairs / the ACCC something to work with.

      • dazweeja

        On a functional level, this actually doesn’t seem that dissimilar to warranties on other electronic items where it is claimed that the warranty is void if the product is opened. For example, on a Xbox there is a little silver sticker inside the case on which it is written that the warranty is void if the inner case is opened and the sticker is torn. Similar stickers appear on computer hard drives and optical drives. Do you have an opinion as to whether these claims are valid under the law or not?

        • James Finnigan

          Yep. Same dealio! Although, there is almost no good reason to open up your hard drive. I know from experience that will not end well.

          Depending on what’s wrong with your device, you might have a pretty hard time showing that you didn’t break it if you’ve opened it up though.

    • http://twitter.com/martindolan Martin Dolan Sci-Fi

      You DON’T have to prove the ROM you installed didn’t cause the fault.
      THEY have to prove that the ROM you installed DID cause the fault.

      So just re-install stock ROM before you send it back. Anyway, CPU’s have thermal overload protection built in, and personally I think its stupid to overclock anyway. Who wants to have a phone that is on the verge of locking up or powering down, or eating through batteries like no-body’s business.
      It is fun to flash roms with extra functions and no bloatware though.. :o)

      • dazweeja

        “You DON’T have to prove the ROM you installed didn’t cause the fault.
        THEY have to prove that the ROM you installed DID cause the fault.”

        I’m not so sure. That would certainly be the case if they had no knowledge of you unlocking the bootloader. But in this case they do. So the equation has changed from “internal damage = can’t have been your fault” to “internal damage = could have been your fault”. And it was your action that lead to this change. And before you took this action, you were warned that they consider this action to be a contributing factor to certain types of damage. I don’t think it is legally as clear-cut as you make it out to be.

        • http://twitter.com/martindolan Martin Dolan Sci-Fi

          Ok. Think of this.
          * You buy a microwave
          * It has a sticker on it, and it says in the instructions that you must not put metal objects in it as it COULD damage the microwave and MIGHT void your warranty.

          * The sticker is across the door opening gap, and is a tamper proof sticker so if you open the door the sticker breaks.
          * After 3 months, the microwave malfunctions so you take it back to the store.
          * The store looks at the microwave, sees the sticker is broken and says Ahh.. Sorry your warranty is void. We think you put metal in there – see the sticker is broken. It says in the manual and on the sticker that you must not put metal in there. Clearly you opened the oven. By opening the oven you could have put metal in there. Metal could damage the oven and cause it to malfunction. The oven IS malfunctioning. Based on all these points we will assume that the cause is metal you put in there.

          Your argument would be to this that you opened the oven to put many different things in there, that is what an oven is designed to do, put things in and heat them up. Metal was one of the things you COULD have put in there, however metal was not one of the things you DID put in there, so, if they think you did, it is up to them to prove you did.
          – – –
          Same with the phone. You unlocked it to install and run software. That is what a smart phone is designed to do. Run software. You have loaded many different bits of software on there after unlocking it. Ad blockers, recovery software to back the phone up as a whole, bloatware free versions of software to make system run smoother, anti theft and encryption software for security. Overclocking software was one of the things you COULD have installed on there, however overclocking software was not one of the things you DID install on there, so, if they think you did, it is up to them to prove you did.

          Otherwise, by their logic:
          * Every car warranty is void because you COULD have taken it off road or raced on a race track with it.
          * Every powertool you buy from Bunnings/Home Hardware is warranty void because you COULD have used it in a trade situation.
          * Every inkjet printer you buy is warranty void because you COULD have put third party ink in it.

          …. but actually, you will find that if they want to accuse you of those things, they have to prove you did. You don’t have to prove you didn’t.

          Just because someone says something, it does not make it a fact. Like the “No refund or exchange” signs you see on a wall behind the cash register. The sign holds no weight AT ALL…. and its also illegal to even put it there….

          • dazweeja

            I don’t think your microwave analogy is valid. In your analogy, you couldn’t actually use the microwave for its intended/advertised function. Say the microwave worked fine and was fit for purpose. It did everything it said on the box. But there was a panel inside the microwave that allowed you to reprogram the microwave, increase output, etc., and there was a sticker over that panel that said that only qualified technicians were allowed to open the panel or the warranty would be void. If you took that microwave back to the manufacturer with a broken sticker and a blown inverter, I think there’s a good chance the manufacturer would refuse you warranty and little chance that the ACCC would take action against the manufacturer for doing so.

            New car warranties almost always stipulate that servicing is carried out by qualified staff, according to the manufacturer’s specifications, using genuine or appropriate quality parts where required. This is enforced by car dealers and manufacturers. A phone manufacturer could argue along similar lines – the phone is only covered by warranty if qualified staff (or an approved automatic process) install genuine or manufacturer-approved software (to protected partitions like /system and /boot). They could argue quite reasonably that the only reason to unlock a bootloader is to circumvent this. I don’t see the ACCC taking any action in this case either just as I don’t see the ACCC taking action against Microsoft, for example, for expressing similar warranty conditions for the Xbox.

          • Matt

            Well using that analogy you could unlock the boot loader and then do nothing… I know – who would? Still..

          • Phil

            I unlocked my bootloader so I could get rid of the poorly performing Telstra ROM and install the stock Google ROM on my GN. Didn’t root it, just unlocked.

          • http://twitter.com/martindolan Martin Dolan Sci-Fi

            All interesting points @dazweeja:disqus

            However your microwave oven rebuttal is over the top. Your example is explicitly overclocking the microwave. You seem to be coming from the point of view that overclockling is the only reason you would unlock a phone…

            …And that is buying into their BS argument. Just like the movie and music industry are hell bent on banning bittorrent use by brainwashing the world that bittorrent is and can only used for downloading pirate software.
            Remember also that a car manufacturer or microwave oven manufacturer does not offer you a special screwdriver that you can not get elsewhere and has the express and only use of removing the inspection panel to gain access to the inner workings of their products. Phone manufacturers do in the way of bootloader unlocking software.

            And it still goes back to them to prove you did something that caused the fault. If you take your new car back to the manufacturer one month later with a cracked head (ok, I know shiz about cars haha) they can’t point at a spot in the dashboard and say – sorry – your warranty is void as you modified the car by removing the factory fitted car radio and and installing the “Doof-Doofinator 3000 – and you are not a qualified person to carry out that task anyway”

            The facts remain:* They can not offer you a tool to use on the condition that you agree to forfeit your warranty if you use it.* They can not throw darts at a “Your warranty is invalid because…” dartboard and use its random excuses to void your warranty – They need to specify what you did, and show the evidence.

  • http://twitter.com/martindolan Martin Dolan Sci-Fi

    I’ve been going through similar problems with Expansys in Australia, telling me that their warranty for my HTC OneX is only three months, when the manufacturer warranty is 12, and it can be even longer than that under Australian consumer law. (It is reasonable to expect a top of the line phone to work longer than 12 months, and soi the warranty has to match that)
    I have had to complain to consumer affairs, post on the twitter and facebook page of Expansys, the tweet directly to the CEO of Expansys, make a formal complaint to HTC about Expansys and get HTC to contact them directly.
    It is appalling that only then they decide to do the right thing.
    I’d strongly recommend against purchasing from Expansys if you are thinking of it by the way as they cheerfully break the law and send you mocking and rude emails as they do it.
    Telstra and Optus are not much better. They mess you around as much as they can so you will give up, until you mention the Telecommunication Industry Ombudsman. Then they start doing the right and lawful thing. So a mention of the TIO will open a lot of doors. Once a matter has been taken that far and not resolved in a set number of days, they get fined daily I believe until a resolution. So if they ask you to agree to mark a matter resolved before it is actually resolved, that’s why. Don’t do it.
    An example might be: Your Cable modem is not working correctly. They agree to send you a new one and ask if the matter can be closed. You say No. I will close the matter when the modem has arrived, been installed and tested as working.

    It is a great article, thank you.
    It makes me feel comfortable to unlock my HTC bootloader. I know the HTCdev website says if you unlock you MAY void your warranty if it can be proved that the changes you make HAVE caused the problem.
    …However as soon as you do unlock, and send it in for any fault (even known factory defects) their service department tells you the phone has no warranty as it is unlocked. So that goes against what they say on their website, AND the law.

    • http://twitter.com/nevetsg nevetsg

      I was once told by a useless Telstra complaints rep that the Telecommunication Industry Ombudsman is my next step in their complaints policy. So i did what i was told and Telstra still could not be bothered fixing my issue.

  • Anon

    I love this guy

  • Milty C

    I sympathize with the OEM’s on this one. They have gone out their way to make phones with unlocked bootloaders and you guys are trying to find legal loopholes to make them pay even when you stuff your phone by flashing roms etc.

    And you wonder why OEM’s lock their phones down ?

    • James Finnigan

      I sympathise with OEMs too, to a certain extent. The point of this article was that blanket claims that doing certain things will void your warranty are illegal and untrue. Unlocking the bootloader doesn’t void anything.

      I’m not trying to help people find legal loopholes, I’m just trying to make sure people know their rights.

    • http://twitter.com/Montalbert Scott

      its not things we do that is the issue- why should me unlocking the bootloader affect warranty on things like screen (as mentioned in article) , faulty buttons etc. I have done nothing to affect these.

      If people stuff their phones flashing stuff then that’s fine but hardware issues not caused by custom roms SHOULD be covered.

  • Ocu

    I know of people who found a workaround for the “unlocked bootloader issue”. They put their faulty phone in a microwave, 1 sec on high. It killed all chips inside >>without<>any<< visible damage. Manufacturer had no options but to replace the phone.

    Where there is a will, there is a way

  • rav

    can someone give me contact details of asus.i want a refund bcoz my tablet has harware problems.store people are hopeless so i will write directly to asus about this matter.

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