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Most Online 'Terms of Service' Are Incomprehensible To Adults, Study Finds (vice.com)
Two law professors analyzed the sign-in terms and conditions of 500 popular US websites, including Google and Facebook, and found that more than 99 percent of them were "unreadable," far exceeding the level most American adults read at, but are still enforced. From a report: According to a new paper published on SSRN (Social Science Research Network), the average readability level of the agreements reviewed by the researchers was comparable to articles in academic journals. "While consumers are legally expected or presumed to read their contracts, businesses are not required to write readable ones. This asymmetry -- and its potential consequences -- puzzled us," wrote co-author Samuel Becher, a law professor at Victoria University of Wellington, in an email to Motherboard.
I know myself many of the agreement are so filled with legal interpretation that unless your a lawyer or are familiar with some of its terminology. You probably do skip over some of the stuff that's important. I would guess that is not by accident that its worded as such to confuse the average user.
Exactly.
unenforceable.
AC comments get piped to
For any contract to be enforceable, it has to have real and valuable consideration. Basically, I give you X and you give me Y. Lets say you sign a contract that says you give me your car. Not enforceable. Or, you give me your car, I give you a penny. Also not enforceable - not valuable consideration. Or, you give me your car and I give you $500. Now that's enforceable.
What does "enforceable" mean? Anybody can break a contract. Lets say you change your mind and you won't give me your car for $500 after you said you would. I'll never get your car (that's called "specific performance" and is pretty rare) but I can sue you for damages. What are damages?
Lets say I passed up a deal on a similar car for $600 so I could buy yours. Prices went up and now I have to pay $800 to get one. Damages are the difference, $200, and I'd win that in court.
A law professor told me that this is the basis for all contract law. You give me X, I give you Y. If you change your mind, you're liable for whatever extra your breach of contract cost me.
Sooooo.... A website's TOS is bullshit. Unless it's giving you a service valuable enough to bother going to court over. And they can't just pull a number out of their asses.
write things in such a way as you can't get held responsible for anything, yet hold your customers to any standard, charge, demand, etc you wish to make.
;)
Lawyers write everything in Legalese, Un Comprehensible, goobbly gook!
Just my 2 cents
"You agree to sign your soul away under the condi......."
DONE!!!
Whew, now I have access. Let's get on with it!
Life is not for the lazy.
This is the same thing the finance industry did with loans and credit cards. They wrote up 20 pages of tiny, tiny print, written at a college graduate level, and got away with stealing from people for years.
Then Elizabeth Warren got the CFPB created and the government required credit forms to be clear, with details about what you owe and how much it costs you.
We need this with tech.
Government isn't always the answer, but government is our protection from corporations who only care about shareholder value and not you, your family, or in some cases, your life.
It isn't unique to web sites.
Go to any medical procedure from a dental filling to major surgery and you'll be required to sign away a host of rights, usually with mandatory binding arbitration and forbid a wide swath of malpractice lawsuits against everybody involved. Go buy an item and look at the legal text often shown on the receipt, or the text on a receipt directing you to the web site for the conditions of sale. Look at the 10+ pages of employment contracts usually needed to get a job, which these days nearly eliminate the ability to sue employers for things like unpaid wages or wrongful termination.
Trying to shop around doesn't help because every business incorporates them.
Go ahead and tell your doctor that you won't sign away the rights until you've negotiated a new agreement that is fair. See how well that works.
What really needs to happen is an overhaul of contract law. Currently every imaginable service has been wrapped inside contract law, and thanks to many court rulings lawyers can remove all legal protections by crafting a contract. Most protections afforded in law can be wiped away with a service contract. Nothing short of a new SCOTUS ruling or major law change could correct the issue, and there is almost no chance of those happening in the foreseeable future.
//TODO: Think of witty sig statement
Of course they're designed to be incomprehensible to anyone except a lawyer, they were written by lawyers in most cases. Doesn't matter if you've got three PhD's, unless you're a JD (and sometimes even then if you're not up on relevant case law) you won't have a chance of deciphering a EULA, TOS, or similar legalese document. That's not a bug, it's a feature to let them write the most onerous terms possible while obfuscating that from the end user.
This asymmetry -- and its potential consequences -- puzzled us,
The contract is written by the online business and is therefore entirely for their benefit. So long as the percentage of consumers who refuse to do business with them because they either can't understand the terms or disagree with them is a rounding error they have zero incentive to make them less asymmetric. How can these academics possibly find that puzzling?
The solution to this problem - I have always felt - is some sort of "terms seal of approval". I observe that 99% of web sites fall into a tiny number of common categories. The government could create a handful of "Approved terms" which had been carefully vetted for fairness (to both sides), readability and enforceability. A website could then simply select the one most relevant to their business, insert a link and a seal of approval saying something like "Covered by Government Terms Type 3" or some such.
Both sides would benefit from such an arrangement:
Consumers would have only a tiny number of easily readable sets of terms to understand and certainty that these terms would not change without some sort of fairly widespread warning. They would also know that the terms complied with relevant consumer protection laws.
The business would benefit from (a) a good impression of a fair company being given to their customers, (b) no need to spend a lot of money getting a lawyer to hand craft some terms and (c) certainty that the terms would not be thrown out by the courts due to some drafting error.
Back in the 1990s, I got my first credit card. The first few times I had to sign the slip, I noticed it said I agreed to some cardholder agreement and then some other agreement. I thought "What's in that agreement?" Everybody thought I was crazy for even caring.
We failed to stop this train long ago. You implicitly agree to contracts when you buy a pack of bubble gum from a store, open an app, or make a phone call. It's too much.
We recently saw an article about a reported who tried to go without Amazon, Google, or Facebook for a week. How about trying to go a week without implicitly signing a contract? You would probably starve to death.
Probably 99% of adult US residents can't easily read and understand US income tax laws - yet they are required, under the threat of fine and incarceration, to follow them.
No one is required to agree to a TOS on a commercial website and, if they wish, they can have a lawyer review the TOS before agreeing.
In reality, I think most people (excluding those who are illiterate, and/or suffering from some forms of mental illness, and/or intellectually disabled) are just too lazy and/or unmotivated to read and understand most TOSs rather than "unable" to do so. Note that having to look up a phrase in a dictionary doesn't mean you are unable to understand a document containing that phrase -- and the next time you run across that phrase you then already know what it means. Note that having to refer to Section (x)(1)(II)(A) of a contract when it's mentioned by reference elsewhere in the contract may be time consuming, but it does not render the one "unable" to understand the contract. Long ago I used to read TOSs all the way through and never had a problem understanding them. Occasionally, I will still read one all the way through just to keep tabs on what tends to be in them and still have little trouble understanding them -- yes, it's a lot of work and if I actually insisted on reading every one, there are a lot of sites I wouldn't patronize as the cost of reading and understanding the TOS far exceeds the value of the site to me (although not, perhaps, to others).
Although, of course, I can't predict reliably how a court may interpret potentially ambiguous terms. However, the simpler the agreement is, the more likely there are to be ambiguous terms. For example, does the term "supplier" just refer to the subsidiary providing the service or does it apply to successor companies and parent company? Much of the complexity that makes a TOS harder to read is attempting to eliminate ambiguity -- as is the case in most legal documents. If the TOSs were more easily read, the resulting ambiguity would result in more class actions suits attempting to exploit that ambiguity.
Courts tend to apply the doctrine of contra proferentem to contractual interpretation, especially in contracts of adhesion ("take it or leave it" or "standard form" contracts) or in situations where the drafting party has more power and expertise than the non-drafting party (both true in the case of most TOSs). Under this doctrine, ambiguous terms/clauses are interpreted in favor of the non-drafting party. As a result, the drafting party must be very careful to remove any ambiguity that could be interpreted against them -- and this results in much more complex contracts.
Note also that "being unable to understand a contract" is quite different from "preferring that a contract's terms were different".
Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading