The 'Terms and Conditions' Reckoning Is Coming (bloomberg.com)

Everyone from Uber to PayPal is facing a backlash against their impenetrable legalese. From a report: Personal finance forums online are brimming with complaints from hundreds of PayPal customers who say they've been suspended because they signed up before age 18. PayPal declined to comment on any specific cases, but says it's appropriate to close accounts created by underage people "to ensure our customers have full legal capacity to accept our user agreement." While that may seem "heavy-handed," says Sarah Kenshall, a technology attorney with law firm Burges Salmon, the company is within its rights because the users clicked to agree to the rules -- however difficult the language might be to understand.

Websites have long required users to plow through pages of dense legalese to use their services, knowing that few ever give the documents more than a cursory glance. In 2005 security-software provider PC Pitstop LLC promised a $1,000 prize to the first user to spot the offer deep in its terms and conditions; it took four months before the reward was claimed. The incomprehensibility of user agreements is poised to change as tech giants such as Uber Technologies and Facebook confront pushback for mishandling user information, and the European Union prepares to implement new privacy rules called the General Data Protection Regulation, or GDPR. The measure underscores "the requirement for clear and plain language when explaining consent," British Information Commissioner Elizabeth Denham wrote on her blog last year.

Comments

Re: Slimy

[bill_mcgonigle]

Paypal wasn't slimy at its founding (were you around then?). After the Feds rekt its business model the interesting people left, leaving it run by the kind of people who implement really bad policies.

Re:reading test?? what about an BAR test?

[jythie]

This is why the 'just read it' rhetoric doesn't quite work. EULAs are written for a very specific audience with specialized knowledge. Even if a layman understands the sentences themselves, they are not generally going to be able to put them into the proper context of the rest of the legal framework. They half depend on people not reading them, and half depend on the professional arrogance of people reading them and believing that since they are smart computery type people working in the one and only field that requires specialized knowledge, so they understand legal documents just as well as people who actually have that domain knowledge.

Can't be done

[Solandri]

"the requirement for clear and plain language"

That's just the problem. Those two requirements are mutually exclusive. You can have language that's clear (i.e. explains exactly and precisely what you're consenting to), or you can have language that's plain (simple to read and understand). Except for a few broad, general cases, you can't have both.

e.g. Consider the EULA terms for a photo sharing service. Your photos are protected by your copyright, but the service needs to be able to keep a copy.

"User (copyright holder) grants Service a license to keep a copy of copyrighted photos."

But wait, it's not enough just to keep a copy of the photo. For the photo to be shared, another copy needs to be produced on the visitor's computer.

"User (copyright holder) grants Service a license to keep a copy of copyrighted photos, and to make and distribute additional copies for the purposes of providing the service."

But wait, the service right now is a photo sharing service. What if they decide to change in the future into something more? So you can't just call it 'service', you have to define exactly what that service is.

"User (copyright holder) grants Service a license to keep a copy of copyrighted photos, and to make and distribute additional copies for the purposes of providing the service of distributing photos to other users whom User has given permission to view."

But wait, what if one of those other users decides to keep a copy of said photo? The service doesn't want to be sued for such actions since that's out of its control.

"User (copyright holder) grants Service a license to keep a copy of copyrighted photos, and to make and distribute additional copies for the purposes of providing the service of distributing photos to other users whom User has given permission to view. User understands that copies made to provide the service will be on devices outside of Service's control, and Service cannot guarantee such copies will not be retained or further distributed against User's wishes. User indemnifies Service against responsibility for copyright violations by other users, and will not sue Service for the actions of other users."

But wait, what if some of those users are employed by the service? That creates a loophole where the service could hire third parties to sell and distribute unauthorized copies, free from fear of being sued for copyright infringement.

"User (copyright holder) grants Service a license to keep a copy of copyrighted photos, and to make and distribute additional copies for the purposes of providing the service of distributing photos to other users whom User has given permission to view. User understands that copies made to provide the service will be on devices outside of Service's control, and Service cannot guarantee such copies will not be retained or further distributed against User's wishes. User indemnifies Service against responsibility for copyright violations by other users, and will not sue Service for the actions of other users, except in the case of users who are employees or agents of Service."

But wait, the service needs to keep backups of these photos in case they suffer a storage device failure. Such backups are prudent but not necessary to provide the service. And the clause you've just added makes the admin making the backups liable for copyright violation.

"User (copyright holder) grants Service a license to keep a copy of copyrighted photos, and to make and distribute additional copies for the purposes of providing the service of distributing photos to other users whom User has given permission to view. User understands that copies made to provide the service will be on devices outside of Service's control, and Service cannot guarantee such copies wil