5 ms·

Website terms of service are not viewable until you have already accessed the web site. Unless the web sites give users an interstitial page wherein they explic

by Zikes 11y ago

Website terms of service are not viewable until you have already accessed the web site. Unless the web sites give users an interstitial page wherein they explicitly click a button to agree to the terms of service before proceeding, then they would otherwise fall under Browse Wrap[1], for which most existing legal precedence favors the consumer rather than the web site. [1] https://en.wikipedia.org/wiki/Browse_wrap https://en.wikipedia.org/wiki/Browse_wrap

zecg 11y ago
I use ublock origin to hide the wrapper and the cookie agreement, I never click I agree.
- Zikes 11y ago
  I'm fairly certain that knowingly circumventing a TOS agreement doesn't make you immune to it.
  - adrusi 11y ago
    If your bank sends you a credit card contract and you don't sign it but their broken system lets you use their service anyway, are you liable for the terms of that contract?
    - DannyBee 11y ago
      Generally, yes, if you knew it existed.
  - jbob2000 11y ago
    He doesn't know that he has circumvented it, it is never shown to him.
DannyBee 11y ago
This isn't quite right. It varies, but in general, if you continue to use the site, knowing such a TOS exists, you may be bound by it (you may not, it depends on the terms, etc). You would get a pass on "the first time you accessed the web site", not "every time you did it afterwards knowing there was a TOS". This all assumes you noticed it exists. There is another question of "can i be bound by the TOS if i didn't ever know it existed" vs "can i be bound by a TOS if i didn't bother to read and assent to the terms explicitly". The answer to the first is "mostly no" the answer to the second is "mostly yes" (but again, depends on the terms of the TOS). This is what actual precedent is, anyway ;) The next question that gets asked is basically "what if i just lie and said i never noticed it, what do they have to prove", and the answer is "if you are willing to lie, this is a worthless discussion to have".
- Zikes 11y ago
  If the article seeks to attack the adblocking system itself, then I would press that the most important utility of adblockers is that they block dangerous elements on sites that the user has no history with or knowledge of. I feel perfectly comfortable browsing HN with my adblocker turned off, but I would want it turned on for 75% of the links I click from here. Also, the above linked Browse Wrap wikipedia article stresses that precedent for the web site only occurred when the web site prominently and repeatedly displayed or linked to the TOS, especially near sections of the page where the user was actually likely to look (e.g. near the "Checkout" button, rather than buried in the footer). Additionally they mostly regard actions taken on the web site, such as downloading software or purchasing products. Currently there seems to be very little expectation that the user is bound to a TOS by simply continuing to browse a web site, and I'm curious if there even exists any cases dealing with that.
  - DannyBee 11y ago
    "Also, the above linked Browse Wrap wikipedia article stresses that precedent for the web site only occurred when the web site prominently and repeatedly displayed or linked to the TOS, especially near sections of the page where the user was actually likely to look (e.g. near the "Checkout" button, rather than buried in the footer). " This is an editorialization by wikipedia (sadly). If you read the actual cases, you'll see they hinge on the standard contract stuff. IE "(1) Did the user have either actual or constructive notice and (2) Did the user assent" What it takes to do this is pretty much 100% unclear overall, and wikipedia stating otherwise is just plain wrong.. Both of these can be constructive/implied/etc, and are going to be what gets argued about in front of a judge. The difference you see in caselaw is just differences between what judges felt which was really fair. You can find plenty of cases with only slightly different situations. "Currently there seems to be very little expectation that the user is bound to a TOS by simply continuing to browse a web site, and I'm curious if there even exists any cases dealing with that." Ye. Facebook's TOS, for example, has been enforced multiple times. See, e.g, E.K.D. v. Facebook, Inc., 885 F. Supp. 2d 894 (S.D. Ill. 2012). and Fteja v. Facebook 2012 WL 183896 (SDNY 2012) The only agreement you find there is it's conspicuous that they add the words "and you are indicating you have read and agree to the terms of service" in various places. So if that continues to be held enforceable, you'll probably see folks do that, and problem solved. The rest of caselaw is still a mismash. For every example you can find a counterexample. Ticketmaster Corp. v. Tickets.com, Inc., 2003 U.S. Dist. Lexis 6483 (C.D. CA., March 7, 2003) (held bound to TOS just from browsing) vs In re Zappos.com, Inc. Customer Data Security Breach Litigation, 893 F.Supp. 2d 1058 (Dist. Ct. Nevada 2012). (TOS was not conspicuous enough) vs Hubbert v. Dell Corp., 2005 WL 1968774 (Ill. App. Ct. 2005) (court upheld arbitration clause in Dell’s for cause regarding alleged false claims made by Dell to online purchasers of the computers. Court found different colored hyperlinks on each page like a multipage contract) etc So i return to my original statement: Most of the court cases seem to depend more on what relief is being sought and what the TOS says more than what happened and where it was. They shouldn't, but they are :) Forum selection clauses, for example, that nobody likely read, have the carnival cruise precedent from SCOTUS (TL;DR forum selection clause on back of printed ticket that nobody ever saw until after they purchased is binding) However, all cases i've seen where the user was told "and you agree, explicitly, to the terms of the TOS" somewhere mildly conspicuous, came out in favor of the TOS holder, even when no explicit assent was given through clicking, etc. The cases pretty much all agree on that.

by Zikes 11y ago

zecg 11y ago

I use ublock origin to hide the wrapper and the cookie agreement, I never click I agree.

Zikes 11y ago
I'm fairly certain that knowingly circumventing a TOS agreement doesn't make you immune to it.
- adrusi 11y ago
  If your bank sends you a credit card contract and you don't sign it but their broken system lets you use their service anyway, are you liable for the terms of that contract?
  - DannyBee 11y ago
    Generally, yes, if you knew it existed.
- jbob2000 11y ago
  He doesn't know that he has circumvented it, it is never shown to him.

DannyBee 11y ago

This isn't quite right. It varies, but in general, if you continue to use the site, knowing such a TOS exists, you may be bound by it (you may not, it depends on the terms, etc). You would get a pass on "the first time you accessed the web site", not "every time you did it afterwards knowing there was a TOS". This all assumes you noticed it exists. There is another question of "can i be bound by the TOS if i didn't ever know it existed" vs "can i be bound by a TOS if i didn't bother to read and assent to the terms explicitly". The answer to the first is "mostly no" the answer to the second is "mostly yes" (but again, depends on the terms of the TOS). This is what actual precedent is, anyway ;) The next question that gets asked is basically "what if i just lie and said i never noticed it, what do they have to prove", and the answer is "if you are willing to lie, this is a worthless discussion to have".

Zikes 11y ago
If the article seeks to attack the adblocking system itself, then I would press that the most important utility of adblockers is that they block dangerous elements on sites that the user has no history with or knowledge of. I feel perfectly comfortable browsing HN with my adblocker turned off, but I would want it turned on for 75% of the links I click from here. Also, the above linked Browse Wrap wikipedia article stresses that precedent for the web site only occurred when the web site prominently and repeatedly displayed or linked to the TOS, especially near sections of the page where the user was actually likely to look (e.g. near the "Checkout" button, rather than buried in the footer). Additionally they mostly regard actions taken on the web site, such as downloading software or purchasing products. Currently there seems to be very little expectation that the user is bound to a TOS by simply continuing to browse a web site, and I'm curious if there even exists any cases dealing with that.
- DannyBee 11y ago
  "Also, the above linked Browse Wrap wikipedia article stresses that precedent for the web site only occurred when the web site prominently and repeatedly displayed or linked to the TOS, especially near sections of the page where the user was actually likely to look (e.g. near the "Checkout" button, rather than buried in the footer). " This is an editorialization by wikipedia (sadly). If you read the actual cases, you'll see they hinge on the standard contract stuff. IE "(1) Did the user have either actual or constructive notice and (2) Did the user assent" What it takes to do this is pretty much 100% unclear overall, and wikipedia stating otherwise is just plain wrong.. Both of these can be constructive/implied/etc, and are going to be what gets argued about in front of a judge. The difference you see in caselaw is just differences between what judges felt which was really fair. You can find plenty of cases with only slightly different situations. "Currently there seems to be very little expectation that the user is bound to a TOS by simply continuing to browse a web site, and I'm curious if there even exists any cases dealing with that." Ye. Facebook's TOS, for example, has been enforced multiple times. See, e.g, E.K.D. v. Facebook, Inc., 885 F. Supp. 2d 894 (S.D. Ill. 2012). and Fteja v. Facebook 2012 WL 183896 (SDNY 2012) The only agreement you find there is it's conspicuous that they add the words "and you are indicating you have read and agree to the terms of service" in various places. So if that continues to be held enforceable, you'll probably see folks do that, and problem solved. The rest of caselaw is still a mismash. For every example you can find a counterexample. Ticketmaster Corp. v. Tickets.com, Inc., 2003 U.S. Dist. Lexis 6483 (C.D. CA., March 7, 2003) (held bound to TOS just from browsing) vs In re Zappos.com, Inc. Customer Data Security Breach Litigation, 893 F.Supp. 2d 1058 (Dist. Ct. Nevada 2012). (TOS was not conspicuous enough) vs Hubbert v. Dell Corp., 2005 WL 1968774 (Ill. App. Ct. 2005) (court upheld arbitration clause in Dell’s for cause regarding alleged false claims made by Dell to online purchasers of the computers. Court found different colored hyperlinks on each page like a multipage contract) etc So i return to my original statement: Most of the court cases seem to depend more on what relief is being sought and what the TOS says more than what happened and where it was. They shouldn't, but they are :) Forum selection clauses, for example, that nobody likely read, have the carnival cruise precedent from SCOTUS (TL;DR forum selection clause on back of printed ticket that nobody ever saw until after they purchased is binding) However, all cases i've seen where the user was told "and you agree, explicitly, to the terms of the TOS" somewhere mildly conspicuous, came out in favor of the TOS holder, even when no explicit assent was given through clicking, etc. The cases pretty much all agree on that.