The basic law relating to online terms and conditions has been stable for some years now and should remain so. It certainly is not headed for a "reckoning."
When private parties transact business in a free society, the law of contracts steps in to provide rules enabling them to do so in a well-defined and orderly manner. Contract law has some fundamental principles that anchor it and, beyond those, has a vast number of intricacies that potentially can come into play in individual circumstances. Concerning fundamentals, for most executory contracts to be enforceable, you need to have mutual consent and some exchange of consideration. That is, a meeting of the minds on material terms and an exchange of value. When these elements exist, the law considers a contract to be binding and imposes legal consequences for any breach or failure to perform. In order to avoid chaos, it further stipulates that the core principle (meeting of the minds) is not based on purely subjective factors but on what a reasonable person would believe in the circumstances. This objective standard enables commercial transactions to proceed without endless second-guessing about what the parties might have desired or meant when they contracted in any given transaction. Because of this, while it can easily become messy in any given case, most contract situations can be legally evaluated with a fair degree of certainty and parties can plan their affairs and determine their rights accordingly.
The above describes what might be called a very high-level summary the central tenets of the common law of contracts in the Anglo-Saxon legal tradition. If someone reasonably can be said to have consented to a given transaction involving some exchange of value, legal rules applied to govern how that exchange took place and what would happen if some breached his or her agreement.
When it comes to terms and conditions in online commerce, the law generally applies this body of contract law but does so via what might be called the fiction of mutual consent between the contracting parties. It is well known that the vast majority of persons do not bother to read such terms and conditions when they click on the "Agree" button. Nonetheless, the terms and conditions are legally binding upon such persons. Why? Because it is assumed that the person read and understood them in clicking. And that assumption is what makes it a fiction. In effect, the law says, "we will pretend that the person read through the terms and knowingly agreed to them." Given that this legal fiction effectively substitutes for a true consent, the law can proceed along its merry way and treat this contract as it would any other, i.e., treat it as binding and enforceable upon the "contracting" party. In effect, to preserve orderly rules of contract in such transactions, the law effectively says that the terms and conditions are legally binding if they are such that a reasonable person who had taken the time to read through them would have understood them to have a certain meaning (that is, the "reasonable person" meaning that the law will enforce upon the person doing the clicking).
This fundamental approach to terms and conditions in online transactions has not changed one bit in some years and is under no risk of being changed. Because, without it, you could not practically have any semblance of legal orderliness in online transactions.
Moreover, while it is often said that dense legalese is undesirable in such situations, courts generally enforce such legalese without hesitation, even if a complaining consumer says until he is blue in the face that it could have been put in easier-to-understand plain English. There is no legal rule that requires contractual language to be put into plain English and there are some types of contracts where an attempt to express the legal requirements in that way would cause a loss of precision or lead to other problems. Whether something is expressed in plain English or not, then, typically does not affect its enforceability in online transactions.
Again, nothing pervasive is happening in the law affecting online transactions so as to require use of plain English to make terms and conditions enforceable.
None of this is to say that there are no protections in existing law when people try to use weasel language to defraud others or use language that is so imprecise as to mislead consumers or use language that is so ill-defined or vague as to leave important matters uncertain to the other contracting party. In all such cases, existing common law has remedies of varying kinds to say that such contracts are unenforceable or that some remedy applies in favor or an aggrieved or defrauded consumer. But, in practice, these are edge cases, the ones that wind up in dispute or in court. The vast bulk (99%+) of the commerce that occurs is covered by the general contract rules and proceeds in an orderly way because the rules are known and predictable.
Against this background of the common law contract rules, it is possible for persons to want to modify the existing rules on grounds that such rules are unfair to the consumer and or are not based on true consent by that consumer or for some other public policy ground.
This is where special public-policy-driven enactments come in to modify the standard contract rules. Legislatures can adopt special laws dictating outer bounds to how businesses can use the private data of consumers as such data may entrusted to them. In this area, perhaps, a form of "reckoning" may occur if it is determined that companies such as Facebook ought not to be able to sell or misuse private data to the detriment of their users. This is an important development and serious changes may be afoot affecting such special areas. But this does not affect the general principles by which online contracting occurs.
There could also be proposals mandating that plain English be used in terms and conditions or requiring this or that form of mandated disclosure to help ensure greater consumer understanding but all such proposals come with decided trade-offs that typically make them impractical. The reason for the fiction of legal consent in the current system is the supreme utility that comes from allowing millions of online transactions to occur every day without incident based on orderly rules known to all. You can change all that through legislative enactments saying that public policy requires a different system that is more fair to consumers. But at what price? That is why the current system is and remains solidly in place.
To underscore the importance of utility, I have been legally trained and have years of experience such that I could easily read through and comprehend the legalese that is found in most online terms and conditions. Yet, with rare exceptions, I am just like everybody else and will click "Accept" or "Agree" without reading anything and without a second thought. As a lawyer, I can't say that I am proud of this but I can say this is human nature. The issue is not primarily that legalese or plain English will make a difference in understandability. It is that we take the path of least resistance when not much is at stake and we don't want to be bothered. Try as we might, no law will solve that problem.
Its beyond even being a legal fiction in many situations. There is no option for most people when it comes to certain terms and conditions.
Take phones for instance. You cannot live in modern society without a phone. You will not be able to get a phone, without agreeing to one of these long terms and conditions. They come from landline providers, they come from cell phone providers, they come packaged in the box in the cell phone from prepaid phone sellers.
How is saying, you're cut off from society or you can agree to a contract designed in a way that you have no reasonable chance of actually understanding it, something we want for society?
For practical purposes, you can’t secure a dwelling without signing a long, complicated contract (be it a lease or a mortgage note). Yet dwelling is a necessity, even more so than a phone. And, in these contracts, so much more is on the line. According to your argument, you should not have to be bound by the terms of these agreements. You may indeed believe that, but I hope you can see how much of our society is based on the assumption that these agreements have force, and how far we are from moving to a state where they do not. You may wish it were otherwise, but there is essentially no chance of that change being enacted in the foreseeable future.
I know, we can't just throw out the concept of a contract with our current society and I don't think there would be a benefit in doing so. However mortgages are something that rarely have side effects surprise the signers. Terms of service seem to surprise the majority of individuals who agree to them, and as the poster above said, the idea that anyone agreeing to them understands what they agreed to is a fiction.
Why terms of service are having a different outcome is something that should be figured out and mitigated. We shouldn't just keep charging forward on something where the outcome is bad for the vast majority of individuals in society, just because we've always done it that way
I told the title company handling the closing of my first home, in 1982, that I wanted a copy of every document I'd be asked to sign 3 weeks before the closing date. They told me they had no process for doing that and they would look into it. From that day forward I never went into a real estate closing without a real estate lawyer.
Yes, I have several adjustable rate loans, and they do still surprised people, they just aren't on the level of surprise of nobody even reading it because it's too long and complicated to understand
I'm not sure I agree with the previous poster about phones, but I never signed a 50 page lease agreement. Typically they have been about three pages. Buying a house requires a bit more and a home loan requires a lot more, but it's only once you are taking a home loan out that you end up with a contract comparable to what internet companies come up with. Further, when you take out the home loan and make the purchase, there is a human being to walk you through the details. Also, I consider a house purchase to be significantly more serious than a pay-go phone.
I think there are some US states where housing rental/lease agreements are regulated to be shorter/simpler. I want to say our lease in Washington was only 3 or 4 pages. Whereas, I recall other places have been in the dozens of pages.
Of course, I'm one of the minority who reads every page of those...and everything singed when buying a house. Luckily, most title companies will supply copies ahead of time.
I read my mortgage note cover to cover, and also the Facebook T&C front to back. They both seem pretty easy to understand to me, tbh. The standard CA home purchase contract is the scariest of the three, because there are so many options that can cause huge swings in value and liability.
No matter how plain the language is, it cannot benefit someone who doesn’t read it. You may argue that the lack of plain language in T&C causes the lack of reading. But there’s a natural experiment here in the form of those same U.K. financial services terms you mentioned. Do you honestly believe that a large fraction of U.K. financial services consumers are informed about the terms of financial services they are consuming? I have no data here, but the concept beggars belief. Even if they are ten times as informed as American consumers of internet services, that would mean order 1% of consumers had read the terms, as opposed to 0.1% if people reading web T&Cs.
Even that strikes me as very unlikely, just examining my internal estimates how likely I’d be to read terms and conditions if they were in plain language. I don’t think the impenetrability of the language is the main barrier to reading T&Cs. The main barrier is that there is little on the line, and, moreover, I can already guess approximately what the T&Cs are going to say.
This is just a gut reaction. If you have some data to show that U.K. consumers are significantly more informed based on these plain language requirements, I’m happy to recant.
I think we're talking about slightly different things here. While many financial institutions (and others now) will provide a plain English explanation of the whole contract, I'm just talking about the key terms.
"Your house may be at risk if you do not keep up with repayments. Variable rates can go up and down." etc.
These sorts of things are required not just at point of agreement, but everywhere a financial product is marketed. They're short enough. Same thing as you'll see in where medical marketing is allowed.
So in that vein, before Facebook takes data about you, it should be explaining that they and their partners operate a marketing platform that is used to monitor and influence your political views. That they can use your photos of you and your children and others for their own marketing purposes. That licenses you grant them to your content are everlasting and irrevocable.
It's over-done (on purpose) but initialling each term like this should be a requirement for contracts that subvert your rights [to privacy, here] as is required elsewhere.
I don't have data on the efficacy of said warnings. The rules here have existed longer than I have. But it's not illogical to suggest that forcing somebody to actually engage with the text before they give up data will mean more will read it.
The main barrier is that the length of T&Cs is completely unreasonable relative to what is at stake. How can someone be expected to read through and understand something the length of a short novel just to post a few images online or something?
Was a time long, thoughtful, informed comments on this site garnered plaudits rather than gripes. Considering this is one of the only informed, reality-based comment in the entire thread, I think it’s best to engage with and appreciate it, rather than making easy jokes.
I’ve read your entire comment and still think that the GP is an appropriate joke. You gave a good overview, in clear language, trying to be as concise as possible. The result us still quite long, in fact I guess it is long enough that most commenters won’t read it in full, just like a typical T&C document.
Contracts are long for good reasons, but excessive contract length is a real problem.
The US is set up to be regulation-lite and litigation-heavy. As such, contracts tend to be rather encompassing, lest they be vulnerable to litigation.
You also seem to be missing that your parent and the GGP are not the same account. The original comment was written by grellas, a longtime HNer and valued contributor. I doubt grellas runs sockpuppets considering he had a YC connection at one point, IIRC.
The question is whether all the data that is collected from online consumers is actually required in order to fulfill the ever-growing number of online transactions. What data is needed to purchase a product or subscribe to a paid service? Perhaps name, billing address, payment details, etc. Any data collected above and beyond that minimum may be rightfully questioned and might reasonably be considered "optional".
Facebook's data policy has now increased from something like 2700 words to 4200 words.[1] Putting aside the question of whether this makes it more or less digestible by users, some are saying the new policy may make more clear what data Facebook is collecting. However the question remains: Why are they collecting it? This is perhaps the fundamental question and one that underlies the GDPR. With respect to each item of user data: Is it neccessary to collect it in order to provide the product or service.
Is there a minimum amount of data that must be collected? Is the amount of user data that Facebook is collecting above that minimum?
Facebook is clearly a business. It is selling a service. There are paying customers. However there is a question whether users are actually the "customers". Is the relationship between Facebook and users a commercial one?
How does one quantify the "price" that users pay. What are the users affirmative obligations under the agreement? What is the user's end of the bargain. An agreement to allow herself to be studied?
What is Facebook's end of the bargain? Does it have any affirmative obligations regarding service? What happens if Facebook fails to perform their end of the bargain? How is the value of the service quantified?
Does this arrangement at times seem tantamount to users agreeing to take part in an elaborate, ongoing "marketing survey", where their behaviour online will be recorded, observed and analysed? Does this make the user agreement different from a traditional commercial transaction?
Is the relationship between Facebook and advertisers more like a traditional commercial transaction? What data does Facebook collect about its customers, advertisers? Is it only the minimum needed to provide the service?
Is joining Facebook the modern equivalent of taking part in Nielson ratings, agreeing to have a monitoring device attached to ones television recording ones viewing habits.
When private parties transact business in a free society, the law of contracts steps in to provide rules enabling them to do so in a well-defined and orderly manner. Contract law has some fundamental principles that anchor it and, beyond those, has a vast number of intricacies that potentially can come into play in individual circumstances. Concerning fundamentals, for most executory contracts to be enforceable, you need to have mutual consent and some exchange of consideration. That is, a meeting of the minds on material terms and an exchange of value. When these elements exist, the law considers a contract to be binding and imposes legal consequences for any breach or failure to perform. In order to avoid chaos, it further stipulates that the core principle (meeting of the minds) is not based on purely subjective factors but on what a reasonable person would believe in the circumstances. This objective standard enables commercial transactions to proceed without endless second-guessing about what the parties might have desired or meant when they contracted in any given transaction. Because of this, while it can easily become messy in any given case, most contract situations can be legally evaluated with a fair degree of certainty and parties can plan their affairs and determine their rights accordingly.
The above describes what might be called a very high-level summary the central tenets of the common law of contracts in the Anglo-Saxon legal tradition. If someone reasonably can be said to have consented to a given transaction involving some exchange of value, legal rules applied to govern how that exchange took place and what would happen if some breached his or her agreement.
When it comes to terms and conditions in online commerce, the law generally applies this body of contract law but does so via what might be called the fiction of mutual consent between the contracting parties. It is well known that the vast majority of persons do not bother to read such terms and conditions when they click on the "Agree" button. Nonetheless, the terms and conditions are legally binding upon such persons. Why? Because it is assumed that the person read and understood them in clicking. And that assumption is what makes it a fiction. In effect, the law says, "we will pretend that the person read through the terms and knowingly agreed to them." Given that this legal fiction effectively substitutes for a true consent, the law can proceed along its merry way and treat this contract as it would any other, i.e., treat it as binding and enforceable upon the "contracting" party. In effect, to preserve orderly rules of contract in such transactions, the law effectively says that the terms and conditions are legally binding if they are such that a reasonable person who had taken the time to read through them would have understood them to have a certain meaning (that is, the "reasonable person" meaning that the law will enforce upon the person doing the clicking).
This fundamental approach to terms and conditions in online transactions has not changed one bit in some years and is under no risk of being changed. Because, without it, you could not practically have any semblance of legal orderliness in online transactions.
Moreover, while it is often said that dense legalese is undesirable in such situations, courts generally enforce such legalese without hesitation, even if a complaining consumer says until he is blue in the face that it could have been put in easier-to-understand plain English. There is no legal rule that requires contractual language to be put into plain English and there are some types of contracts where an attempt to express the legal requirements in that way would cause a loss of precision or lead to other problems. Whether something is expressed in plain English or not, then, typically does not affect its enforceability in online transactions.
Again, nothing pervasive is happening in the law affecting online transactions so as to require use of plain English to make terms and conditions enforceable.
None of this is to say that there are no protections in existing law when people try to use weasel language to defraud others or use language that is so imprecise as to mislead consumers or use language that is so ill-defined or vague as to leave important matters uncertain to the other contracting party. In all such cases, existing common law has remedies of varying kinds to say that such contracts are unenforceable or that some remedy applies in favor or an aggrieved or defrauded consumer. But, in practice, these are edge cases, the ones that wind up in dispute or in court. The vast bulk (99%+) of the commerce that occurs is covered by the general contract rules and proceeds in an orderly way because the rules are known and predictable.
Against this background of the common law contract rules, it is possible for persons to want to modify the existing rules on grounds that such rules are unfair to the consumer and or are not based on true consent by that consumer or for some other public policy ground.
This is where special public-policy-driven enactments come in to modify the standard contract rules. Legislatures can adopt special laws dictating outer bounds to how businesses can use the private data of consumers as such data may entrusted to them. In this area, perhaps, a form of "reckoning" may occur if it is determined that companies such as Facebook ought not to be able to sell or misuse private data to the detriment of their users. This is an important development and serious changes may be afoot affecting such special areas. But this does not affect the general principles by which online contracting occurs.
There could also be proposals mandating that plain English be used in terms and conditions or requiring this or that form of mandated disclosure to help ensure greater consumer understanding but all such proposals come with decided trade-offs that typically make them impractical. The reason for the fiction of legal consent in the current system is the supreme utility that comes from allowing millions of online transactions to occur every day without incident based on orderly rules known to all. You can change all that through legislative enactments saying that public policy requires a different system that is more fair to consumers. But at what price? That is why the current system is and remains solidly in place.
To underscore the importance of utility, I have been legally trained and have years of experience such that I could easily read through and comprehend the legalese that is found in most online terms and conditions. Yet, with rare exceptions, I am just like everybody else and will click "Accept" or "Agree" without reading anything and without a second thought. As a lawyer, I can't say that I am proud of this but I can say this is human nature. The issue is not primarily that legalese or plain English will make a difference in understandability. It is that we take the path of least resistance when not much is at stake and we don't want to be bothered. Try as we might, no law will solve that problem.