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Is small print in online contracts enforceable?


By Alex Hudson of BBC News

Some companies have terms of service so expansive they contain more words than novels

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With some internet companies’ terms and conditions being longer than Shakespeare’s Hamlet, could it be that “unfair” clauses in agreements are not even worth the paper they are printed on?

Terms of service online have been in the news in recent years.

In 2012 Facebook’s photo-sharing site Instagram updated its privacy policy giving it the right to sell users’ photos to advertisers without notification.

Three days later, after a public backlash, the policy was dropped, citing “not communicating clearly”.

A month later the number of people using the site was believed to have dropped by nearly 50%.

Yet companies continue to test the boundaries of what consumers are willing to accept.

“Apple reserves the right at any time to modify this agreement and to impose new or additional terms,” the iTunes terms of service says.

But most people probably will not have read that when signing up to iTunes.

Law in Action’s Joshua Rozenberg discusses on BBC Radio 4 what we really agree to when we accept internet companies’ terms of service.

Listen to the whole programme on iPlayer
It gives companies the right to change anything agreed to in the initial agreement and by continuing to use the service, users agree without giving specific consent.

“We see it in Microsoft, Netflix, Apple,” says Jimm Stout, of the site Terms of Service; Didn’t Read (ToS;DR).

“They don’t have to tell you, they may tell you but they may not. Just continuing to use the service is complying with that contract,” he adds.

ToS;DR has been set-up to “fix the biggest lie on the internet,” where people tick a box to say they have read things they have signed up for.

But it could be that, in Europe at least, these sort of clauses may not hold much weight if they ever went to court.

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If you were to read all the policies that you agreed to online, you would have to take 76 workdays just to finish ”

Jimm Stout
Terms of Service; Didn’t Read
Would it be possible for a company to enforce a condition they had introduced without letting people know?

“It isn’t possible as such, not under European law,” says Professor Julia Hoernle, an internet law specialist at Queen Mary, University of London.

She tells BBC Radio 4’s Law In Action: “The first point is that in a long-term relationship such as a social network, the service provider has to be able to, at some stage, change terms as they engage in technical innovation, they offer new services, they want to collect different data or the prices change.

“There has to be some mechanism whereby they can change the terms.

“But it’s quite clear they have to give notice to the consumer and give the consumer a choice to cancel the contract because they don’t find these terms acceptable any more.”

Longer than Hamlet
Many companies carry this sort of clause in their terms of service, and it is believed to be valid in the US legal system.

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Apple’s terms

“Apple reserves the right at any time to modify this Agreement and to impose new or additional terms or conditions on your use of the iTunes Service.

“Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Your continued use of the iTunes Service will be deemed acceptance thereof.”

Apple iTunes’ full terms and conditions
But if it is illegal under European law, why are companies which operate here trying to retain the right to do whatever they wish?

“Customers don’t read the terms of service so [companies] get away with it,” says Prof Hoernle.

“The consumer might win but the consumer has the heavy burden of taking the cost of litigation. It takes a brave person to take on a service company on the internet,” she adds.

It is perhaps not surprising consumers do not read every terms of service agreement they sign up to.

Shakespeare’s longest play, Hamlet, is around 30,000 words long.

Paypal’s terms of service agreement contains approximately 50,000 words.

Apple iTunes’ conditions come in at a mere 14,500 words, just under the length of Macbeth.

“If you were to read all the policies that you agreed to online, you would have to take 76 work days just to finish reading through the policies you agreed to,” says Mr Stout.

Apple was unavailable for comment.

‘No restrictions’
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the courts now take into account that if there are unfair clauses hidden away in terms of service”

Prof Hörnle
Queen Mary, University of London
They certainly cannot be accused of not being thorough. But is this not just a way for companies to make sure people don’t read them?

Prof Hoernle says: “The law does not impose any restrictions on length of terms and services. It puts quite a heavy burden on the user to read the terms of service.”

In 2010 retailer Gamestation chose to change its online agreement to something a little bit more risqué.

“You agree to grant us a non transferable option to claim, for now and for ever more, your immortal soul,” it read.

It was published on 1 April.

Instagram was forced to back down last year when it tried to change its terms and conditions
“Of course it was an April Fool’s Day joke but they proved a big point,” says Mr Stout.

“People don’t read these things. People don’t know what they’re agreeing to,” he adds.

The saving grace could be that companies are less likely to be able to enforce rules that are not “fair” if the person using the site is not made aware of them specifically.

“There are controls on what we call unfair terms,” says Prof Hoernle.

She says: “Clearly the courts now take into account that if there are unfair clauses hidden away in terms of service, it’s more likely to be [deemed] unfair.

“The user has to be made aware of the terms of service and if there are any unusual or surprising terms of service, they have to be pointed out specifically to the consumer.”

If this is the case, it seems like there are nearly as many rules on terms and conditions as there are in terms and conditions themselves.

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