Hiding Your Choices And Saying You Made Them

An anonymous reader writes "Lawmeme's Paul Szynol describes how during installation RealPlayer hides checkboxes that elect that the user receives spam, making it look like the user chose to make the selections when in fact he probably just didn't see the options. "This is essentially a cheap and dirty marketing tactic which creates an illusion of informed acceptance by the user where no such acceptance really exists." Other people have posted similar examples from other applications. Is this illegal, or just annoying?"

Comments

Illegal?

[Prior Restraint]

Is this illegal, or just annoying?

Okay, I'll offer myself up as the sacrificial lamb and ask the obvious: Why would this be illegal?

Re:Illegal?

[Anonymous Coward]

Because some folks can't get up the nerve to get indignant about anything unless it's illegal. Especially on Slashdot, if you complain about someone who does something rude or inconsiderate, the inevitable response is: "It's a free country. What are you, some kinda communist?" Not only is this behavior not illegal, but it SHOULDN'T EVER be illegal. But it's still wrong! [If this comment gets modded up, there will be tons of responses from people who don't understand the concept of something being wrong and not illegal, but have no trouble at all with things that are illegal but not wrong]

Re:Illegal?

[sjames]

There several good reasons depending on why they did this.

If they are claiming (to advertisers or users) that the spam is opt-in, then their practice is deceptive/fraud (false advertising, etc)

If they try to claim that the users 'consent' relieves them from fines where spam is illegal, they have comitted a different sort of fraud that is approximatly the same as hiding a real contract behind a reasonable one that covers all but the signature line. (a long time favorite of moustache twisting villains in old movies, I might add). At the very least, it's as bad as using print so small that even a person w/ perfect vision needs a magnifier (in the case of disclaimers, and the health warning on cigarettes, that practice is specifically illegal).

I think it is fairly clear that REal intended for the selections to be deceptive. Deception of that nature is at least unethical, and in some cases, illegal.

Re:Illegal?

[jgerman]

I hate to defend shady practices but:

Right off the bat it is NOT misrepresentation. You did make a choice, you chose not to scroll down, part of the standard idiom of reading information on a computer screen, and lazily just click next. You not reading or clicking on something does not constitute claiming that you made no choice. You could easily turn the argument around (and it would be just as meaningless) if they weren't pre checkedby saying you weren't given the choice to say yes.

In a physical world example it would be like giving me a contract to sign but removing several pages from it. i.e. Not just sections that I jump over because it is awkward to review ala most EULA.

In a weak, and not applicicable physical example you're right. But let's make it more accurate. In a physical world example it would be like giving you a contract to sign and having multiple pages below the top one that you need to flip through to read, which is SUPRISE how it usually works.

Personally I feel like to be polite, all check boxes should be unchecked to begin with, but it certainly isn't, and shouldn't, be illegal to do otherwise.

How is this illegal?

[dada21]

"There should be a law!!!" I hear it every day. I figure I'm in some socialist Green country, but then I realize I'm not. People are just unbelievable.

If someone gives you a contract in .001 font size, no it is not illegal. It is up to you to say "I won't sign this, and I won't use your product."

If someone decides to "hide" some options down a scroll list, or maybe on a back page, it is still your responsibility to see if there is more, before signing it.

If they ask you to "Accept" a 40 page long list of rules and rights you are relinquishing, it is not illegal -- its just lazy of you to scroll through it all haphazardly and click "Agree!" You don't need their product, so close the window and say screw it. Follow up with a letter to their management, and if enough people complain, maybe things will change.

If you enter a fake e-mail address in, THAT might be illegal. Check the text to see. If anything, entering "OK" and moving on just gives the companies the knowledge that you agree (which you do by accepting their terms). Don't regulate these guys with LAWS, regulate these guys with MARKET tactics.

There should never be "consumer rights." I hate that term. YOU are not a consumer, and THEY are not a producer. You are BOTH market exchangers. They are exchanging their product for either your money, your e-mail address, or your personal information. You feel that any of those items you are exchanging is worth less than their product. This is true of ANY market exchange. You produce your cash, or your address, or your information, they product an item or a service.

There are no magic "economic" theories behind any of this. This is common Austrian School of Economics theory. It works. Go check out http://www.mises.org/ to learn more.

Consumers don't exist. Producers don't exist. We're both just equal partners accepting one person's services or products for the bartered exchange for another.

Keep the government out of it.

Re:I firewall Realplayer.

[Target Drone]

Software firewalls are great for managing misbehaving software installations like Realplayer.

It does seem rather ironic that nowadays my firewall blocks more traffic coming from my own machine then from hackers on the net.

Re:My feeling is...

[squiggleslash]

The reason why it isn't illegal is that there's no legal obligation to provide an opt-out for spam in the first place. Spam isn't illegal.

My reading is that if there was an obligation, Real's tactic would, indeed, be illegal. People are comparing this to the "small print" in contracts. However, small print is clearly visible, and the intent behind it is to discourage people from reading it, rather than discourage them from believing that more information is available.

Here's a question. Suppose I gave you a sheet of paper, with a contract written on it. At the top is the space for the signature. The last clause on that paper was shown complete, and you read it, asked for a pen, and signed it. Could I get away with then enforcing clauses on "page 2" of the contract, that I never gave you, and quite intentionally avoided mention of, on the grounds that "The contract was two pages, if you'd just asked I'd have given you the second sheet". (Ok, so the dialog has a scrollbar with a bar positioned at the top, but the contract, for the sake of consistancy, has "Page 1 of 2" written at the bottom in small writing.)

I seriously doubt it, and I suspect any lawyer that tried such a trick would get disbarred. Despite the belief that law is all to do with loopholes and the ability to con people that many Slashdotters believe, and occasionally even think is right, words like "intent" and "mislead" and "reasonable" come up time and time again in courts, and are taken very seriously. If there is a serious, deliberate, and successful attempt to mislead someone into what the terms of a contract means, the contract is very rarely valid.

None of which has any bearing on this case because spam isn't illegal. As you say "Some people don't like immoral but technically legal tricks", but I'd say it's the spam, not the agreeing to it, that's the technically legal but entirely immoral thing going on here.