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Court Rules Website Terms of Service Agreement Completely Invalid
another random user sends this excerpt from Business Insider:
"In January, hackers got hold of 24 million Zappos customers' email addresses and other personal information. Some of those customers have been suing Zappos, an online shoes and clothing retailer that's owned by Amazon.com. Zappos wants the matter to go into arbitration, citing its terms of service. The problem: A federal court just ruled that agreement completely invalid. So Zappos will have to go to court—or more likely settle to avoid those legal costs. Here's how Zappos screwed up, according to Eric Goldman, a law professor and director of Santa Clara University's High Tech Law Institute: It put a link to its terms of service on its website, but didn't force customers to click through to it."
You can bet the farm that because of this all major online retailers have already started work to change their registration and ordering systems to implement a clickthrough rather than ticking a checkbox that says 'I agree'.
Why not force folks to read the small print by having a short quiz (perhaps multiple choice) that ``ensures they read AND UNDERSTOOD the material''?
Going to have to buy another judge.
Don't worry, we'll find one that's not too expensive.
That the judge found improper.
So. Not only a contract they wanted to make binding without any user agreement, but also a contract where the language could be rewritten after you agreed to it, without having to sign off on the new language.
-- perl -e'print pack"H*","6e656d6f406d38792e6f7267"'
The whole TOS crap needs to change. If Zappos had forced people through the TOS page not one single extra person would have read it. It's just an arse covering law with no benefit to customers or vendors.
In the future we will have to read those 36 pages of legalese and complete a test on it....
So their T&Cs is invalid because of a technicality, not because it limits consumer rights.
There needs to be baseline laws that guarantee a minimum amount of consumer protection, that can't be trumped by T&Cs, as Law > T&Cs.
Basically, as it stands now, a website could put in T&Cs that gives them the right to kill you and your pets for non-payment of services. Or more realistically, terms for $1,000,000 per day penalty for late payment on an account worth $10,000 in it's total life.
The excuse that we should settle with "you should have read the T&Cs" is unacceptable, not eveyone does, maybe it is because some people in our community find them too hard to understand or can not afford a lawyer to check it, is too trusting, or whatever the case may be, and it doesnt mean that these people deserve to be taken advantage of.
We need to look at Australia's consumer laws as a model for the world. These laws are just common sense for what a consumer would expect from a retailer, but put out in law that can't be trumped or rights taken away except in very specific circumstances where there is a fair reason to (not just trying to limit their liability for their own fuck ups) and this waiver has been made crystal clear to them by a requirement to explain this to the consumer until they understand, and sign a standardised form that says in big letters across the top "YOU ARE WAIVING SOME OF YOUR RIGHTS IN THIS TRANSACTION, PLEASE READ CAREFULLY" or to that effect.
Years ago I got into a fight with Dell after I returned a projector and they docked me a restocking fee. When I asked where the terms around the docking fee appear in the ordering process, the guy I was speaking with just gave me a URL to type in to take me directly to the terms. What he didn't get is that there was nothing in the ordering process that would have presented me with those terms before proceeding. It's not enough that the terms appear on some random web page.
I'm so tired of these "verizon math" moments where I'm forced to work through other people's stupidity. It's really exhausting and demoralizing. Seriously, it's so frequent now that I'm left with not wanting to ever do anything for fear of having to deal with the mental stress over the fallout from proceeding.
(I ended up getting the money back via my credit card provider.)
Email lists are regularly stolen from ecommerce and info sites, as anybody who owns their own domain for email and can give out single-use email addresses knows. I report it every time it happens, and I've only gotten a positive response once, from Walgreen's Photo. Everybody else either fails to answer or points me to their privacy policy (as if that somehow prevented them from having data stolen). My suspicion is that there is a back-door or two in popular mailing-list software that ecommerce sites use; it can't be *that* many corrupt insiders stealing and selling email addresses to have actual human inside involvement.
This is overdue. We've got to make it criminal fraud to make anything that sounds like a contract, but claims the 'contract' can be altered afterwards without your agreement.
Sounds like a big flyswatter, but making it criminal unleashes the shark lawyers to go after it while dragging the cops in their wake. It's the only way to get balance against the power of corporations to keep pulling this bullshit on individuals. And the crap will vanish overnight, so it's not like it'll plug up our court system.
I don't get it.
Consumers throw their personal information like water balloons at as many websites as they can and then we feel it's somehow the website's fault when they drop one. If you don't want your privacy balloon to pop, hold onto it.
"With patience a ruler may be persuaded, and a soft tongue will break a bone."
I'm definitely not a lawyer, but my understanding is that the exchange of money is also an act of agreeing to the terms that initiated that exchange.
For example the "By paying this invoice in the amount of $37.99 you are agreeing to the terms of use [link to TOS]" If the customer sends you $37.99 they have also agreed to the terms that would be active at the date of the invoice.
For any ecommerce site, doesn't this avoid some of the issues explained in the article? I mean its essentially what a lot of cell phone companies do. I have never once physically signed a cell phone contract, nor "clicked" any "I Agree" button on their websites, yet I still end up bound to 2-3 year contracts every time I make the slightest change to my package.
Same thing with credit card agreements, I sign the first one, but they change those things at least once a year it seems.
First, three blogs down, here's the actual court order. It's worth reading. A key point in this decision is what it has to say about agreements which allow one party to change the terms of the agreement. Such agreements were held to be "illusory" and non-binding:
Here, the Terms of Use gives Zappos the right to change the Terms of Use, including the Arbitration Clause, at any time without notice to the consumer. On one side, the Terms of Use purportedly binds any user of the Zappos.com website to mandatory arbitration. However, if a consumer sought to invoke arbitration pursuant to the Terms of Use, nothing would prevent Zappos from unilaterally changing the Terms and making those changes applicable to that pending dispute if it determined that arbitration was no longer in its interest. In effect, the agreement allows Zappos to hold its customers and users to the promise to arbitrate while reserving its own escape hatch. By the terms of the Terms of Use, Zappos is free at any time to require a consumer to arbitrate and/or litigate anywhere it sees fit, while consumers are required to submit to arbitration in Las Vegas, Nevada. Because the Terms of Use binds consumers to arbitration while leaving Zappos free to litigate or arbitrate wherever it sees fit, there exists no mutuality of obligation. We join those other federal courts that find such arbitration agreements illusory and therefore unenforceable.
This is an example of the classic "an agreement to agree is not an agreement".
An example of a site that's now in trouble is WePay. See Paragraph 50 of the contract.
That makes three reasons not to do business with them:
1. I had an account with them, bought a ton of hiking and running shoes from them over a stretch of time. Made sure not to opt in to any spam. I was very happy with them, told friends about them, etc. Then recently they started sending me spam. Oops. Sorry, but I don't do business with people who spam me.
2. They botched their security badly enough to have this breach.
3. They're scummy enough to try to impose a ToS without actually getting the customer to accept it.
If it was only #2, I wouldn't have cared that much. IIRC they were very up front about it. But #1 is just inexcusable. Large retailers, including Zappos' corporate parent Amazon, all seem to understand this perfectly: if I opt out of spam, they respect that and never spam me. But small businesses are just horrible about this.
The nastiest example I've ever run into is O'Reilly, the book publisher. I'm a college professor, and I get a lot of spam from textbook publishers. An O'Reilly book rep sent me spam about a textbook they wanted me to use. Later, I posted about this on Slashdot when there was a discussion specifically about O'Reilly. Got an indignant reply posted by Tim O'Reilly accusing me of being a liar and challenging me to post the actual email. I posted a reply explaining that when I get spam, I delete it, so I didn't have a copy. Then it came up again in a different Slashdot thread. Same kind of vituperative reply from Tim O'Reilly, now accusing me of being a troll. How can small businesses be so amazingly clueless about how to address this issue?
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T&C's exist because bad laws exist, so we give websites the opportunity to get around them.
Maybe we could just let people learn to be responsible with their information and let the market work like it always does. If a website leaks your information, then don't use it. Why should we have the right to sue them?
...and regardless of the size, color, or style of the font, people will still ignore it.
"With patience a ruler may be persuaded, and a soft tongue will break a bone."
Both Zappos and several of the claiments are located in Nevada.
Nevada law says you can't sign your rights away, even if you 'want' to.
This was done because in the past people were tricked and and pressured into bad deals by organized crime.
Now that old organized crime tricks have become standard operating procedure for big companies in the US, we need the same law at a national level.
Arbitration clauses in ALL ToS cases will go bye bye, this also means Xbox LIVE terms of service agreements will also be ruled invalid under the same precedent.
You don't have to read and agree to a legally binding (or not) agreement to enter a brick and mortar store. Websites deem it vital to their existence.
These types of ToS conditions have been blacklisted since before the internet. Why is this news?
> It put a link to its terms of service on its website, but didn't force customers to click through to it.
Even if they did, those 'agreements' are written by lawyers and are long, verbose and indecipherable. Companies know they can put whatever they like in there and people are lulled into signing it without reading it. QED. These companies know people are entering into agreements with them without reading the contract, and are actually encouraging this practice. Under those circumstances its unconscionable and such contracts should be thrown out of court for those reasons. Companies should be forced to write contracts which are easy to read, small and easily decipherable.
How is there a meeting of the minds if I just randomly click on the "agree" page until I happen to click on the "agree" button?
That all of the other "browsewrap" style agreements we see outside the internet are also invalid? By this I mean items like attraction admission tickets, parking lot receipts and for that matter airline tickets that say things like "acceptance/use of this ticket constitutes agreement with this contract" (such as seen here https://farm3.staticflickr.com/2617/3708171070_cd5418d1e5_b.jpg)
I read the headline and got excited. The conclusion is disappointing. The biggest injustice when it comes to contracts, either ToS or not, is the ability to include stipulations that the signee may not engage in a class action suit or that the terms of the contract can be arbitrarily changed. I'm sure someone will argue that one doesn't have to sign any contract if they don't want to, but I don't see how one can function in society without 'agreeing' to outrageous contracts. If I never agreed (downloading software, visiting websites, purchasing something, working somewhere, etc.) to outrageous contracts I'd be forced to live like the Unabomber or worse . . . like Richard Stallman.
The results of this ruling could potentially just lead to a lot of annoying ToS splash screens when visiting web sites.
"From the depths of my skeptical and rationalist soul, I ask the Lord to protect me from California touchie-feeliedom."
and then you will need to be a lawyer to under stand what the material is.
And there goes Zappos, one of the best online retailers the Internet has to offer. Free shipping, to and from, with free returns if you don't like the color or whatever of the product you order, no limit to how many times you can return or exchange things, no questions asked. Extremely courteous customer service, and a really user-friendly website to order from.
I'm positive this will continue to be the case after they have to shell out millions to a bunch of fucking morons up in arms about "Ermagherd, I ordered from teh Zappos! Teh haxxors has mah info!!!11oneeleven!"
Congratulations on being so litigious and fucking petty that you have to SUE THEM for a security breach that probably couldn't have been reasonably avoided(no matter what you may believe, no site is 100% secure), and will likely cause you(the customer) no problems at all. Congratulations on ruining an awesome thing, in the name of "being right" or on "the principle of the thing" - whatever helps your scumbag ass sleep at night.
Seriously, America. Fuck you. Fuck you all.
If the only way you can accept an assertion is by faith, then you are conceding that it can't be taken on its own merits
It's simple, add a ToS to a http request that provides a link to the ToS. Let the browser send back an answer saying that the user accepts the ToS. Depending on the browser settings, it will either show the ToS to the user, or let them implicitly accept it, if the browser finds that it matches a standard ToS template (or the user has accepted it before). It's a win/win we can keep down the annoyances and make it more difficult for companies to include their own special clauses into ToSs that almost noone reads these days anyways.
Except that in most cases, the contract is not being altered. It is being terminated, and a new contract is being added in its place, which you must agree to if you want to continue using the service. As long as the original contract did not imply that your right to use the service was permanent, there's really no difference between an Internet service changing their terms of service and a skating rink adding additional rules that people have to follow while skating. If the rules don't apply retroactively, not only is it not fraud, but it is also a perfectly reasonable thing to do.
That said, IMO, it is unethical to make material changes to the terms without warning and without giving users an opportunity to wind down their use of the service. That doesn't make it illegal, of course, just wrong.
And to the extent that the users don't know about a change, it probably isn't binding, but notification requirements are a separate issue from being able to change the terms....
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seriously, in the US you can just say in the TnC that you cannot sue and that holds as valid? IIRC in my country this clause is just invalid.
TOS, EULA, etc. are all smoke and mirrors. Companies aren't really dumb enough to think this nonsense is really enforceable, but are hedging on the fact that most people won't bother to take it to court to challenge it. They'll just hear "Sorry sir/ma'am, it's policy" and accept it.
It's just like the cell carriers that gouge x million people for $1-5 extra each month. The ones that catch it call and go "WTF" and they get an apology and the charge removed. The ones that don't notice make millions of extra cash for the company. Most bean counters would see that as a win-win.
So now after the click through advertisment you'll get another click through page for the damn TOS, probably followed by another click through advertisement because why the hell not, before finally getting to the page of content that ends up being useless anyway.
Just make all TOS/EULA's illegal. Problem solved and the world would be a much better place.
If memory serves, precedent was set for this about ten years ago with the Netscape "click wrap" agreements.
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