Perhaps the biggest lie on the Internet is saying, “Yes, I have read and agree to the above statement.” But if you want to obtain any service, you will have no choice but to agree with a company’s terms. This month we will be looking at the implications in contract law of clicking the ‘I agree’ box.
Are these terms legally binding?
From a simple contractual point of view, if you enter into a legally binding agreement, then your consent to a company’s terms and conditions should be binding on you. The argument companies would make is that customers have the choice of whether or not they give a company their business or use its services. This is the concept of ‘freedom of contract’. Yet for most people who consent to a company’s terms online, the reality is that these terms are anything but ‘free’.
The way some company contracts are worded, you might describe their attitude towards their customers as ‘contemptuous’. Despite this, some would find the idea of not using the services of Facebook, Google or Microsoft nearly unimaginable. The services these companies provide are so important to modern life, many would not know what to do without them. Ask yourself: Would you never look at Facebook again because it has some of the Internet’s longest (and most complained about) terms and conditions?
The system for accepting contractual terms over the Internet is profoundly broken, and this seriously affects how UK contract law operates. There are two main problems with the way we now accept online terms:
- The terms of service are far too long. Often they could be shorter and written in plain English and could include clear summaries of key points.
- The average user signs up for dozens of online services. Sometimes agreeing to one service actually means that you have in effect agreed to enter into multiple contracts. This is because many third parties can be involved in providing one service.
It has been estimated that for the average user, it would take over a month every year to read all the terms that they agree to online. This time could increase if a company decides to change its terms after you have signed up. Some of the worst offenders even change their terms without notifying you, because you ‘agreed’ to this when you first signed up. Companies that can currently change their terms without warning include Microsoft, Yahoo!, Skype, Amazon and YouTube.
Can these terms be applied to me?
So you have ticked the box. Surely anything unfair in the contract will not apply, right? The answer to this question brings both good and bad news.
On the positive front, UK consumer protection in contract law is fairly good. There are helpful provisions like the Unfair Contract Terms Act, which limits the extent to which companies can rely on unreasonable terms and conditions. But the difficulty with simply relying on individuals to try and enforce their contractual rights brings us swiftly to the bad news.
Even though the law in the UK might protect you, it is entirely possible that you agreed the contract would be dealt with under the law of a different country. Even if you are able to argue that UK law should apply, are you willing to take your case to court? The time and money you might spend proving your point does not seem worth the effort, particularly if the damage you suffer is based on inconvenience more than on easily quantifiable losses.
So what can be done? The reality is that this is not a situation where enough individuals making legal claims will eventually force companies to treat their customers fairly. The real solution will come only when governments force these powerful companies into line. The European Commission has recently introduced proposals for new data protection regulation. I am not usually a fan of governments getting involved in matters that affect personal privacy and data. If properly drafted, however, the regulation might solve a number of problems with the unfair relationship between individuals and large online companies.
Problems such as all of your personal data automatically becoming the property of a company might not worry you – unless, of course, it is your photos that are sold without your permission or consent. Are customers of Facebook really happy that their personal data automatically becomes the property of Facebook when it is uploaded? Do they even realise that this is the case?
So for the moment, you may have to continue clicking ‘I agree’ even if it means you are selling your soul. But with the right laws, companies will be forced to treat you more fairly. Contracts are meant to make relationships run more smoothly. It is not too much to ask that powerful companies avoid totally trampling over your rights – especially where a contract is not negotiated, as is the case with contracts made online.