I’ve been reading and thinking a lot lately about website terms of service. There’s something unsavory to me about having a contract formed between a website owner and its users by posting complicated legalese on the site and pretending the users read them.
It’s the “pretending the users read them” part that bothers me. Everybody knows consumers don’t read these complicated–and oft-changing–legal documents, yet they form the contract between website and consumer. As Coco Soodek, BigLaw partner and author of the book Birth to Buyout, wrote in a recent post on her Profit and Laws blog, “businesses that pose these contracts have to pretend that they don’t know that you know that they know that you aren’t going to read the contract.” That’s just not a good basis for an agreement that’s supposed to reflect a “meeting of the minds” of the website owner and the user (an essential characteristic of an enforceable contract).
As someone who drafts website terms of service, I completely understand why they are complicated as well as why they are necessary. The relationship between website owner and user is actually quite complicated from a legal perspective, and there’s simply no way to boil the complexity and nuances down to a simple document. But the fact that users don’t read online terms is a problem because they don’t know what they’re agreeing to.
Courts have used traditional contract principles to hold users to terms of service even when they haven’t read them. For example, in a fairly recent case which I commented on in this post, the court stated that “failure to read an enforceable online agreement, as with any binding contract, will not excuse compliance with its terms.” Many other courts have considered whether users should be bound to online terms of service and have held them to be binding except in some cases where the website users didn’t have sufficient notice of the terms or where end-user consent to the terms wasn’t clear enough.
Yet something seems amiss when people routinely enter into these contracts without knowing what they’re agreeing to. If it were just a matter of people foolishly neglecting to read a contract, it wouldn’t be such a concern. But the fact is that it would be well nigh irrational for a consumer to read every set of terms and conditions he or she was presented with. I suspect it would take the average person many, many hours to read all the terms of service they are already bound to. And that doesn’t include the time required to monitor the legal disclosure page of all the various services they use in order to make sure the terms haven’t changed. Plus, when the terms do change, the consumers would have to read them all over again.
Perhaps, in most cases, there is no real harm for consumers not to know what they’re agreeing to. Many of the reported cases deal with matters such as arbitration, choice of law, and venue provisions. In other words, provisions which would not make a difference to consumers’ decision to click “I accept” and which website owners wouldn’t be willing to negotiate anyway. In addition, consumers might be protected by traditional contract principles relating to adhesion contracts, which protect consumers from unreasonably nasty provisions they wouldn’t expect to find if they did read the contract closely.
What do you think? Is it a big deal that end-users don’t read terms of service and that it would be a significant time burden for them to do so?