Slashdot Mirror
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'.
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....
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''?
You just answered your own question - if users understood these terms of service contracts, they would likely not agree to enter them.
An enigma, wrapped in a riddle, shrouded in bacon and cheese
I think everyone has a pretty good idea of how ridiculous these things are, despite the fact that they don't read them.
On one side you've got, "Yeah, yeah... you own my first born, now let me at the stuff I want!"
On the other you've got, "Make sure we've covered everything except ownership of their first born... people are assholes and sue over everything."
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.
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."
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.
Great idea. Can we get Congress to undergo the same when they vote on a bill too?
Give me Classic Slashdot or give me death!
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?
Find free books.
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."
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 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.