"Terms of Service; Didn't Read"

Friday, September 28, 2012


With the lengths of terms-of-service agreements reaching Shakespearean proportions, it's no wonder that internet users are clicking "I Agree" without actually reading what they agree to. A website launched this summer called Terms of Service; Didn't Read is coming up with new ways to inform consumers and fix what it calls "the biggest lie on the web." Bob talks to Michiel de Jong, one of the site's "hacktivist" co-founders.


Michiel de Jong

Hosted by:

Bob Garfield

Comments [5]

HunterJE from Seattle, WA

What concerns this law student is the fact that this group, clearly made up at least partially by laypeople (as evidenced by the confused comments about limitations of liability and/or arbitration/choice-of-forum clauses -- and the fact that I couldn't tell which he was referring to itself is problematic) are essentially giving advice to users of the extension on whether to enter into contracts. He jokingly said the extension itself has no TOS; methinks maybe he should consider it, as he and his colleagues might just face some pretty major legal trouble of their own if someone relies on their advice and then loses a contract dispute...

Oct. 10 2012 08:52 PM
Mark from New York

I'm afraid there's a much longer history of ignore fine print than just Internet terms-of-service agreements.

I recently purchased a financial instrument. The company sent a nice letter in typical 12-point type. It said, in part, "Enclosed is your ____. Please review the ____ thoroughly, and keep this letter and your ____ in a convenient place for future reference."

That was followed by (and I'm not kidding) 1,267 8-1/2 x 11 pages of type ranging down to (I'm guessing) 6 point.

Oh, well.

Oct. 02 2012 11:10 AM
Jason W. from Washington State

The problem with this article is that, while the concern is valid, the Terms of Service agreements that we all click on aren't necessarily valid... or, at least, enforceable.

These Terms-Of-Service are what's known in the law as "adhesion contracts." It's the same as a contract printed on the back of a receipt. The customer didn't have any choice or bargaining power in the contract, and didn't have any say in the terms, so is it really a two-party agreement? Or, is it just a bunch of rules that the vendor made up and required the customer to follow? What does the vendor give up for this agreement? If I'm a vendor can I really just come up with some magic words and post them somewhere, and then I'm insulated from liability?

Adhesion contracts are not necessarily enforceable in the courts, and so they don't necessarily mean anything. Common law courts know that it's not reasonable to read a contract as long as a Shakespearian play just to buy a .99¢ Lady Gaga song on iTunes, and they may choose not to enforce them. European law courts are similarly skeptical of adhesion contracts; a former member of the German Constitutional Court once said something like, "The enforceability of a contract necessarily depends on the relative bargaining power of the parties."

If anything Michiel de Jong reduces the "plausible deniability" of the folks who "sign" these contracts. A vendor seeking to enforce his or her terms of service could use the fact that the customer viewed de Jong's website as evidence that the customer was actually informed about the adhesion contract, increasing the customer's liability (and chances of losing at a trial.)

DISCLAIMER: I'm a lawyer, but not the kind that deals with this sort of thing (usually).

Oct. 02 2012 12:18 AM

Actually, Steve, the interview, towards the end (around 3:50), did discuss the issue of arbitration. And it appears that it is you who haven't done any research as the "tos;dr" project isn't a single individual. It is made up of many individuals participating together. That was made clear in the interview an on the website. It is apparent that corporate power is a particular concern of yours, but criticizing people for not doing something they have *clearly* just done, doesn't help bring attention to the problems.

Instead of complaining that people aren't covering your pet topic, why don't you go to the open forum of "tos;dr" and make sure that your hot button topic is getting the attention it deserves?

Best regards

Oct. 01 2012 04:31 PM
Steve K from USA

I can't believe OTM aired yet another just-for-laughs report on the service "agreements" nobody reads. I believe OTM (as well as other NPR programs) has aired segments on this topic before. Granted, OTM never discussed this particular website. But OTM didn't provide a critical analysis or challenging interview about this website anyway. Instead, the website was used as an excuse to crack jokes about the service agreements.

What's happening to OTM? Has OTM lost staff members over the past 4 years or so? Because OTM used to provide serious critical analyses, relevant news, and even some investigations. Now, I hear more and more segments that seem to exist only for amusement. And they're not even amusing.

This segment, for example, was clearly just intended for amusement.

I don't think OTM did **ANY** research or investigations into any actual recent harm, or potential future harm, resulting from online service agreements.

Because if OTM had done any real work on this piece, then I think OTM would have discussed the one-sided focus of the tos-dr.info website by this self-styled 'hacktivist' -- who, if anyone bothers to look at his website, is apparently concerned only with privacy issues and individual libertarian concerns. Corporate power is not, in itself, a concern for this individual or his website.

But I do believe that if the OTM staff had actually researched and investigated what is at stake in these service agreements, then OTM, at least, would have voiced concern over the way in which these service agreements increasingly give more and more power to corporations while stripping citizens of powers and rights that they once had ...and mistakenly assume they still have.

Perhaps most importantly, more and more of these service agreements (including Microsoft service agreements) prevent people from ever being able to file a class action suit against the corporation or corporations named in the service agreements. Instead, these service agreements mandate that people use arbitration services (paid for by the corporation) in the event of a dispute.

As Dahlia Lithwick shows in part of her recent article in The Nation (Oct 8, 2012), class-action lawsuits have been very efficient and effective in preventing and punishing discrimination & unfair business practices by corporations.

But that course of action seems to be disappearing, partly due to these service agreements, which mandate arbitration and thus ban class-action suits. And, although these service "agreements" may be "the biggest lie on the web," the Roberts Court appears to be treating them as binding contracts (see AT&T Mobility vs Concepcion).

If anyone is curious to learn more, I suggest starting with a simple Google query:

+"service agreements" +"arbitration"


Sep. 30 2012 04:21 AM

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