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So, I 100% agree with you and think a sentence in multi-page privacy policy is not informed consent. Recently in EU GDPR regulation brought in some strict meas

So, I 100% agree with you and think a sentence in multi-page privacy policy is not informed consent. Recently in EU GDPR regulation brought in some strict measures on how consent is requested and how data is shared and managed, I was delighted when websites started sending me emails asking me for content to market and share data. However I am now seeing a bunch of websites doing the shady tactic of showing a full page pop-up on mobile site with all 30+ checkboxes pre-ticked allowing them full access of my data. Fuck such sites.

stevesimmons 7y ago
Those don't meet the required standard of "an unambiguous indication by clear affirmative action" according to the UK ICO's interpretation of GDPR: https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/consent/how-should-we-obtain-record-and-manage-consent/ https://ico.org.uk/for-organisations/guide-to-data-protectio... "You cannot rely on silence, inactivity, pre-ticked boxes, opt-out boxes, default settings or a blanket acceptance of your terms and conditions."
- sneak 7y ago
  What kind of world do we live in where using a free service and agreeing to explicitly documented T&Cs doesn’t constitute acceptance? “You provided a contract, and I agreed even though I chose not to read it (despite you providing it), and used the service, but I didn’t really mean to agree” is the most ridiculous cop-out, in my view.
  - hwh 7y ago
    Actually this is default law in the EU if you are a "customer" and the other party is not. All "surprising" clauses within a T&C document are void.
  - tialaramex 7y ago
    Firstly a Contract is a Meeting of Minds, the forty pages of small type in a PDF are nice, but it's laughable that you pretend you thought everybody read those before using your free service. And if they didn't read them, they clearly cannot agree with just every random term you threw in there and so it can't all be part of that meeting of minds, so there is not, in fact, a contract with people with those terms. OK, so what _was_ agreed? Well, a court is going to decide what a _reasonable_ person thought they were getting into, and they'll use legislation (such as that from the GDPR) to help decide that. They'll also keep in mind a theory about relative power. You wrote these T&Cs, so the court is going to conclude that you should have taken that opportunity to add any terms you really cared about. On the other hand the _user_ wasn't able to edit the terms, so really anything they reasonably expected should probably be acceptable. The GDPR says that you need to have the user explicitly opt in, they get to reasonably assume that's how it works, you can't change that in the text they didn't read. You might think, "Aha, but I made them check a box saying they agree they read it". Too bad, that doesn't help for a very simple and pragmatic reason: Judges are people too. When you explain this theory to a judge, who like other people has had to check loads of these stupid "I agree I have read a 400 page document before using this free service" boxes, they are going to look at you like you just said you think they're an idiot. If you're thinking maybe you can try this on and see for yourself, you'll probably have to be your own lawyer. Certainly in the UK no competent lawyer will take that work. Years ago the UK passed a law banning certain contract terms in "short" residential leases (a "short" lease would be e.g. renting a house for a year). Immediately scumbag landlords wrote new contracts that said basically "I, the under-signed, agree to these terms even though they're not allowed" and then demanded their tenants sign the revised contract instead. Judges were not happy, and I pity the fool who first appeared in front of a judge trying to argue that this was somehow legal when it's obviously not. If you're so sure your users want to explicitly agree to let you do this, make it a separate opt-in, like the regulation says. When, to your disappointment, they don't want to, that is a _learning opportunity_ for you. Take it.
    - mehrdadn 7y ago
      > Firstly a Contract is a Meeting of Minds Re: this, I'm still fascinated how a contract that both parties are not aware of the existence of is even allowed to be treated as a contract in the first place. In many cases like local software, when you accept the T&C, the other party has no idea this happened in the first place, so they can't even claim to have a contract with you. That you can have a contract with "informed" consent from a party from a party (and interestingly this is regarding the other party, not you the consumer) that has no information about the contract's existence just blows my mind.
  - mehrdadn 7y ago
    > What kind of world do we live in where using a free service and agreeing to explicitly documented T&Cs doesn’t constitute acceptance? A world where a clause doesn't become valid just because it's in a contract. That's why various jurisdictions rule void kinds of clauses, even in the US. This isn't a new concept.

stevesimmons 7y ago

Those don't meet the required standard of "an unambiguous indication by clear affirmative action" according to the UK ICO's interpretation of GDPR: https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/consent/how-should-we-obtain-record-and-manage-consent/ https://ico.org.uk/for-organisations/guide-to-data-protectio... "You cannot rely on silence, inactivity, pre-ticked boxes, opt-out boxes, default settings or a blanket acceptance of your terms and conditions."

sneak 7y ago
What kind of world do we live in where using a free service and agreeing to explicitly documented T&Cs doesn’t constitute acceptance? “You provided a contract, and I agreed even though I chose not to read it (despite you providing it), and used the service, but I didn’t really mean to agree” is the most ridiculous cop-out, in my view.
- hwh 7y ago
  Actually this is default law in the EU if you are a "customer" and the other party is not. All "surprising" clauses within a T&C document are void.
- tialaramex 7y ago
  Firstly a Contract is a Meeting of Minds, the forty pages of small type in a PDF are nice, but it's laughable that you pretend you thought everybody read those before using your free service. And if they didn't read them, they clearly cannot agree with just every random term you threw in there and so it can't all be part of that meeting of minds, so there is not, in fact, a contract with people with those terms. OK, so what _was_ agreed? Well, a court is going to decide what a _reasonable_ person thought they were getting into, and they'll use legislation (such as that from the GDPR) to help decide that. They'll also keep in mind a theory about relative power. You wrote these T&Cs, so the court is going to conclude that you should have taken that opportunity to add any terms you really cared about. On the other hand the _user_ wasn't able to edit the terms, so really anything they reasonably expected should probably be acceptable. The GDPR says that you need to have the user explicitly opt in, they get to reasonably assume that's how it works, you can't change that in the text they didn't read. You might think, "Aha, but I made them check a box saying they agree they read it". Too bad, that doesn't help for a very simple and pragmatic reason: Judges are people too. When you explain this theory to a judge, who like other people has had to check loads of these stupid "I agree I have read a 400 page document before using this free service" boxes, they are going to look at you like you just said you think they're an idiot. If you're thinking maybe you can try this on and see for yourself, you'll probably have to be your own lawyer. Certainly in the UK no competent lawyer will take that work. Years ago the UK passed a law banning certain contract terms in "short" residential leases (a "short" lease would be e.g. renting a house for a year). Immediately scumbag landlords wrote new contracts that said basically "I, the under-signed, agree to these terms even though they're not allowed" and then demanded their tenants sign the revised contract instead. Judges were not happy, and I pity the fool who first appeared in front of a judge trying to argue that this was somehow legal when it's obviously not. If you're so sure your users want to explicitly agree to let you do this, make it a separate opt-in, like the regulation says. When, to your disappointment, they don't want to, that is a _learning opportunity_ for you. Take it.
  - mehrdadn 7y ago
    > Firstly a Contract is a Meeting of Minds Re: this, I'm still fascinated how a contract that both parties are not aware of the existence of is even allowed to be treated as a contract in the first place. In many cases like local software, when you accept the T&C, the other party has no idea this happened in the first place, so they can't even claim to have a contract with you. That you can have a contract with "informed" consent from a party from a party (and interestingly this is regarding the other party, not you the consumer) that has no information about the contract's existence just blows my mind.
- mehrdadn 7y ago
  > What kind of world do we live in where using a free service and agreeing to explicitly documented T&Cs doesn’t constitute acceptance? A world where a clause doesn't become valid just because it's in a contract. That's why various jurisdictions rule void kinds of clauses, even in the US. This isn't a new concept.