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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

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.
    - tialaramex 7y ago
      Search for "Carlill v Carbolic Smoke Ball Company" [Carbolic Smoke Balls were advertised as a cure for influenza in the 19th century, you may intuit from the fact that we still don't know how to cure influenza per se that they did not work]. An English Court decided that you can make an offer that you've defined in such a way that you won't receive notice of acceptance, and since /you/ made the offer it's your problem. For Mrs Carlill this meant that buying the product, using it as directed in the advert and then not getting better meant she was now owed £100 (which was a large sum of money in the 19th century) by the advertiser even though they had no idea she'd taken their advertising "reward" literally until she showed up demanding her money. Probably some other mechanism could have been conjured but in our world this decision means contract law is used to manage situations where two parties would clearly benefit by cutting a deal, yet they never meet. Consider a typical car park. You drive into a sign-posted lot, park your car, and leave. Should we require the owner to have staff present to agree a deal with each user? No, it is enough to post signs explaining the general situation, e.g. "£1 per hour or part hour. Pay at machine. Car Park locked at sunset". A court will look at a situation and imply into existence any more detailed terms needed to handle the case in front of them. Is the car park owner liable for damage caused by stampeding elephants? How about if part of the car park itself falls onto a car? If the machine is broken can you still park? What if some scumbag puts an "out of order" notice on it and collects the money? The "Meeting of Minds" formulation works very nicely. Suppose I think I'm buying a steak dinner, and you think you're selling me a live cow, once the confusion is realised there was no meeting of minds, no contract is formed. We are both embarrassed and go on our way. In the ideal case, both parties understand clearly what they're agreeing, courts never need do anything whatsoever, a good lawyer's goal in creating written contracts is to ensure this is what happens because courts are expensive and uncertain. I would recommend seeking out an introductory Contract Law (for non-lawyers) course if you're interested, or in any case if you do freelance work or deal with contracts. Just knowing what Offer and Acceptance are can avoid some nasty situations where you might otherwise need to hire a lawyer after the fact.
- 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.

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.
  - tialaramex 7y ago
    Search for "Carlill v Carbolic Smoke Ball Company" [Carbolic Smoke Balls were advertised as a cure for influenza in the 19th century, you may intuit from the fact that we still don't know how to cure influenza per se that they did not work]. An English Court decided that you can make an offer that you've defined in such a way that you won't receive notice of acceptance, and since /you/ made the offer it's your problem. For Mrs Carlill this meant that buying the product, using it as directed in the advert and then not getting better meant she was now owed £100 (which was a large sum of money in the 19th century) by the advertiser even though they had no idea she'd taken their advertising "reward" literally until she showed up demanding her money. Probably some other mechanism could have been conjured but in our world this decision means contract law is used to manage situations where two parties would clearly benefit by cutting a deal, yet they never meet. Consider a typical car park. You drive into a sign-posted lot, park your car, and leave. Should we require the owner to have staff present to agree a deal with each user? No, it is enough to post signs explaining the general situation, e.g. "£1 per hour or part hour. Pay at machine. Car Park locked at sunset". A court will look at a situation and imply into existence any more detailed terms needed to handle the case in front of them. Is the car park owner liable for damage caused by stampeding elephants? How about if part of the car park itself falls onto a car? If the machine is broken can you still park? What if some scumbag puts an "out of order" notice on it and collects the money? The "Meeting of Minds" formulation works very nicely. Suppose I think I'm buying a steak dinner, and you think you're selling me a live cow, once the confusion is realised there was no meeting of minds, no contract is formed. We are both embarrassed and go on our way. In the ideal case, both parties understand clearly what they're agreeing, courts never need do anything whatsoever, a good lawyer's goal in creating written contracts is to ensure this is what happens because courts are expensive and uncertain. I would recommend seeking out an introductory Contract Law (for non-lawyers) course if you're interested, or in any case if you do freelance work or deal with contracts. Just knowing what Offer and Acceptance are can avoid some nasty situations where you might otherwise need to hire a lawyer after the fact.
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.