Online Agreements, TL;DR, and Unequal Bargaining Power

NB: I am not a lawyer and this is not legal advice, except to the extent that reading contracts/ terms and conditions/ licence agreements is probably in your best interests. (For those not aware, TL;DR means “too long; didn’t read”.)

 

Terms and conditions.  Ugh.  Who reads them?  They’re enough to make anyone’s eyes glaze over, particularly given the length of some of them and that weird (although apparently for the purposes of US law, necessary) habit of putting some bits in the contract in all-caps.  (Two points: one, I learned while studying epigraphy that all-caps were hard to read, and epigraphy is usually much more rewarding than an end-licence user agreement.  Two, what’s wrong with something like Lord Denning’s red hand, albeit applied somewhat beyond just exclusion clauses?)  I’m developing an interest in the mechanisms of this sort of thing, but at the end of the day when I want to unwind with some mental chewing gum, the last thing I want to do is plough through tens of thousands of words of sometimes very technical legalese.  (And to be honest, I even get flack when I, in person, refuse to just sign a one page agreement without reading it.  There’s very much a culture of “it’s fine, don’t worry about it, we just need your signature/ click.”  And people think I’m unreasonable when I push back and actually read the thing.) 

 

It probably goes without saying (and here I come as close as I want to to giving legal advice) that you should read a contract before signing (or agreeing to) it.  The idea is that by signing/ agreeing to a contract, you’ve indicated that you have read it, and you’re agreeing to be legally bound by the contents regardless (there are some exceptions to this, but if my reading of Treitel The Law of Contract (Edwin Peel, 14th ed., p397-399) is accurate, in most instances of not reading online contracts, this would fall under ignorance or carelessness, which do not give a person a defence).   There must be limits to this, of course (obviously the infamous Herod clause is unenforceable).  But beyond what’s well beyond what public policy can tolerate, what can you be forced to do, for what little in return (could you be forced to do janitorial work in exchange for some wi-fi)?  We have legislation in this jurisdiction against unfair terms.  There’s also a general presumption (the contra proferentem rule) that clauses excluding liability will be read as narrowly as possible.  Which all sounds well and good: but how that applies to you, having agreed to the terms, would remain to be seen, and if push came to shove, it would probably have to be litigated.  I don’t know about you, but I don’t really fancy taking one of the giant internet companies to court to figure that out.  And the power imbalance between you, or me, and one of these companies, is no secret.

paperwork

photo credit: danieljcoomber 4/366: It’s so good to be back… via photopin (license)

Power comes into this in lots of ways.  Our whole online lives are governed by these terms and conditions: website hosting, email, social media, searching, and more.  It’s a very rare, and, outside the elderly, probably pretty brave, person who does without all of that.  This seems to me to butt up against some of the competing philosophies behind contract law.  Do we want freedom of contract, where people can pick and choose what they sign up for, and bargain their own contracts, without a great deal of interference?  Should we intervene and insert more consumer protection?  The idea that there’s true freedom of contract in many modern settings, but particularly in internet monopolies or near monopolies, seems a little absurd to me.  While some companies have backed down due to public pressure over certain terms and conditions, these corporations have absolutely no incentive to negotiate with me as an individual.  It’s either take it, or leave it.  The idea that millions or even billions of people would negotiate individual contracts is also wildly impractical.   Standardised forms are obviously the only practical answer here.  But doesn’t something have to give here?

What is the purpose of terms and conditions in a contract, anyway?  We’re supposed to be saying that we understand and agree to what has been written above.  But it’s pretty clear that we’re not doing that.  I think it’s one thing to say that when an individual doesn’t read a contract and has to live with the thing they agreed to, that’s a stupid tax (perhaps, depending on individual circumstances: the Treitel reference above provides some examples of when defences would apply).  But this isn’t a few people, it seems to be almost everyone.   At what point do we need to say that this mechanism isn’t working any more, that this isn’t a true agreement between two parties (in the spirit rather than the mere letter of the law), and we have to think of different solutions?  (In the context of legislating around drone use, I do wonder, given the propensity of people not to read legal documents, whether drone registration, which is suggested will “force individuals to concentrate on the legal limits of their drones”, will make much difference. I hope I’m wrong)

post box

photo credit: zaphad1 XA test roll (16) via photopin (license)

There’s a push in at least some legal circles to make the law more accessible: for example Plain English projects, and the recent celebrated Family Court decision which was written as a letter to the affected teenager.   It’s also remarked upon that some of these online contracts are very poorly written in ways that indicate that they might not be checked particularly thoroughly, even by those tasked with writing them (as in this 2015 article where a service which had ended in 2012 was still in the agreement).  Wouldn’t we all be better off if what we were getting into was more accessible, that we knew our rights and responsibilities, and we didn’t either inadvertently land ourselves in hot water or have to contemplate taking an internet monolith to court?

 

As always, please do comment.  I’d love to hear your thoughts.

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