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If a website knows I didn't really read a contract, can they claim I am bound by it? I like to hope that the time-spent-reading is logged somewhere. Should it

If a website knows I didn't really read a contract, can they claim I am bound by it? I like to hope that the time-spent-reading is logged somewhere. Should it come up in court, Website.com would be required to disclose their logs which would show that I spent all of 1.35s reading their terms and conditions, most of which was spent scrolling. Another puerile hack of mine is to sign a document with the name "I do not agree" and then press accept, and see if they agreed to let me use the service anyway.

stunt 6y ago
Yes, as long as they make it a required step. It's your fault if you choose to not read it.
- deleted 6y ago
  [deleted]
- nerdponx 6y ago
  I am curious if there is any legal doctrine on this in any part of the world.
  - wolco5 6y ago
    You could skip steps on some systems, put in null values, click yes get the next link and remove approval. There is no legal requirement you agree to use the service. The system may prevent access but that's not a legal requirement.
  - 13415 6y ago
    In most EU countries ToS are pretty much void anyway because they tend to contain frivolous or illegal clauses. For example, a ToS is void in the EU that limits the consumer's rights for legal action in any way. Here is a list of unfair contract terms that will likely cause an EULA or ToS to have no legal binding at all: https://europa.eu/youreurope/citizens/consumers/unfair-treatment/unfair-contract-terms/index_en.htm https://europa.eu/youreurope/citizens/consumers/unfair-treat...
  - ulucs 6y ago
    In Turkey the precedent is that not only ToS'es and any kind of pre-written contracts have to be fair by law (ie punitive measures for the customer while there is none for the firm will simply be thrown out by the court) and not include any unexpected conditions. Some time ago, the higher court ruled in favor of a guy who simply claimed he didn't read the long contract and the unexpected conditions shouldn't have been enforceable. Also all consumer disputes below a certain amount have to be resolved by consumer referees, so no binding arbitration clauses here either.
- lcall 6y ago
  Too bad the parent was down-voted. IANAL but I think from other reading that it is correct at least in the USA. I think if one does not read & agree, it is dishonest to say you did.
mkl95 6y ago
It should be fairly easy to do this with something like Hotjar. Although I'm not sure if it is legally feasible to do it without the user's consent, especially in Europe.
- tmikaeld 6y ago
  You'd just have to agree to the agreement to be tracked first. Though, GDPR stipulates that if it's a legal requirement for the service to work (which is the case) then it's not required to log visitor approval.
albertgoeswoof 6y ago
This is why they’re non enforceable in a real court. If I put the rights to your inheritance in a tos no judge is actually going to enforce that, because no one would reasonably sign that away for access to a website. In reality only things which you would reasonably expect to be in a tos or privacy policy could be enforced, given 99% of users don’t read them, or understand them.
- vlovich123 6y ago
  That sounds like how you wish the works worked vs how it does. Are you aware of a single court case where a judge dismissed it on those grounds?
  - still_grokking 6y ago
    I don't know about US law but at least in Germany it's really like pointed out. There is a law governing TOS terms, and it says among other things that the TOS can't contain unexpected und unrelated terms. So if you write for example into the TOS governing your website something like that every visitor owes you 1000 bucks that won't be enforceable. The TOS related legislation is nothing new. It was there already in the analog age to prevent companies form tricking people into signing inappropriate contracts.
- nikanj 6y ago
  Luckily they don't end up in real courts, because corporations go for mandatory arbitration nowadays.
- lcall 6y ago
  IANAL, but it seems like I have read multiple times (incl. on HN discussions, maybe by a lawyer) that such agreements are in fact enforceable in real courts, at least in the USA. I read many years ago that in the 9th circuit one provision was struck down, that the user was bound by any changes posted online w/o notice, but I don't know the status of that anywhere now.
zxienin 6y ago
The way website.com will start dealing with that, is to block end users to spend legally minimum amount of time on ToS.
- Wowfunhappy 6y ago
  Then they will lose users, though.
  - zxienin 6y ago
    Would’ve been my thought too. Yet look at what happened to EU GDPR cookie rollouts.
    - Wowfunhappy 6y ago
      Those only take a few seconds. We're talking about at minimum a solid five minute blockade—and I would posit it really needs to be a couple of hours or more, given the length of these agreements. If a TOS is important enough to a company that they're willing to impose a two hour waiting period on customers, I'd say that's their prerogative. It would likely be effective in getting many users to read the agreements.
- Enginerrrd 6y ago
  That won't work. The real answer is to make it 100 words or less.
alsetmusic 6y ago
I don’t think time spent would matter if someone took the deliberate action of clicking “Accept.” It’s like arguing that you didn’t read a contract before you signed. You still signed. I’m not arguing in favor of TOS. I just don’t buy this. The “I do not agree,” method reminds me of the tactics of “sovereign citizens.” They try to game things via highly specific language. People think they can loophole the system, but still get snared. SCs still go to jail.
- rusk 6y ago
  > You still signed Prove it was me that signed. Prove it was me that clicked accept.
  - aflag 6y ago
    In order to access the service you need to register. The registration form would not allow you to register without accepting it. They only need to prove that you indeed access the service. That doesn't seem too hard to prove for most services out there, or at least the most popular ones.
    - icedchai 6y ago
      I think you missed the point. They can't prove it was him actually filling out the registration form, only someone from some IP address at a specific time. They can't prove the person who logs in using that registered username/password is the same one that accepted the TOS. ToSes are mostly useless. They generally contain a line that indicates the terms can change at any time and you accept them by continuing to use the service.
      - aflag 6y ago
        I guess you'll need to convince the judge that there's reasonable doubt that you did not create the Facebook account that you use and that you were unaware of the ToS and not acting in bad faith. Not saying it's impossible, but it's not as difficult to enforce the ToS as it has been suggested. They are certainly not useless.
vntok 6y ago
For those reading, be aware that while signing "I do not agree" is borderline fraudulent, at least it's not clear user impersonation ie identity theft. There are people who do similar things but sign "Daffy Duck" or even "Barack Obama". Someday they'll be in for a surprise visit.
- wolco5 6y ago
  Not true at all. No one is coming for a visit ever. You could be known as Daffy Duck or Obama or call yourself that. There is no legal requirement to use a legal name. What sites do if a legal name is required is to require a credit card and get the info from there. Clicking,I do not agree is not borderline fraud. Turning off javascript and not getting a tos prompt is not fraud either.
  - aflag 6y ago
    I think disabling javascript could be considered hacking the software.
    - hansvm 6y ago
      Intent might matter a little. I wouldn't be surprised if disabling JS for the purpose of bypassing an access control falls afoul of the CFAA but intentionally browsing the web without JS (e.g. via lynx) does not. If that were the case, they'd have to prove that you intentionally circumvented their access controls.
- gorgoiler 6y ago
  Moreover: signing as “do not agree” and then using the service anyway is about as clear-cut as an abuse-of-service can be. Aka “wire fraud”, if you’re a DA.
13415 6y ago
The best thing to do is to send them by snail mail a printed copy of their ToS with the changes highlighted that you'd like to suggest, accompanied by a friendly letter stating that they are free to send you back their suggestions for further negotiation and that no further action on their behalf is needed if they accept the suggested changes.
- Engineering-MD 6y ago
  But would this hold up in a court?
khuzudin 6y ago
This article is about a plug-in that recognizes TOS agreements and summarizes them for you. I've often wondered if it's feasible to create a plug-in that recognizes TOS agreements and clicks the Accept button for you. It should also make a record showing that you never saw the agreement and did not click the button. Maybe it could aggregate these records to show that for a given website there are thousands of users who have never seen the TOS. Given that most people seem to think these click-through agreements are already pretty weak from a legal standpoint, I wonder how much more it would take to make them completely worthless.
chki 6y ago
This will depend on your specific jurisdiction but just to give you an example of the law in Germany (which I expect to be similar in other places, especially in Europe where a EU-regulation was created on the basis of the German law): Terms of services ("Allgemeine Geschäftsbedingungen" (AGB)) are pre-formulated clauses that one party introduces into the contract without giving the other party the possibility to object to or at least negotiate these clauses. The ToS are part of your legal contract with the other party, regardless of whether you read them. One example of ToS could also be the house rules in your local gym, which possibly weren't even handed out to you but instead they are up on a wall somewhere near the front desk. The important thing is that you need to have the _possibility_ to read them (if you are blind they will need to make sure there is a workaround). Depending on the circumstances the obligation to make sure that you are aware of the ToS can be more strict. The important caveat to using terms of services as a company is a strict content control. § 307-309 of the german civil law define certain things that you cannot possibly put in your ToS. And if a company still does it, a Court will not try to interpret the rule in a favorable way for them, they will strike it out completely. (no "geltungserhaltende Reduktion") Examples of content control include that when buying something it is impossible to sign away (some of) your rights as a consumer for a faulty product. But there are also some "catch-all" clauses in there that will check whether parts of the ToS placed an unfair burden on you as a consumer. ToS can also be void if they are unclearly written. Edit: Signing with "I do not agree" is an interesting approach and sometimes these "hacks" can actually work in Court. That being said, it would probably not hold up. Pressing on "accept" is not somehow invalid just because you said so somewhere else. Off topic but an interesting example of a similar hack is this case of a man changing a pre formulated contract with his bank which they send to him first and then signed it when he had send it back to him. https://www.themoscowtimes.com/2013/08/14/man-who-outwitted-bank-ends-700k-lawsuit-a26770 https://www.themoscowtimes.com/2013/08/14/man-who-outwitted-...
- gorgoiler 6y ago
  Thank you. This was fascinating. Re: I do not agree: the only way my sophomoric hack might ever actually work would be if I argued that clearly the website’s didn’t bother reading my contract response — if they had they would have correctly interpreted my actions as meaning I didn’t agree to the terms. But then I went ahead and used the site anyway. Someone who didn’t agree to the terms would never do such a thing. It is a very silly idea of mine.
hundchenkatze 6y ago
Here's a case between Uber and a blind person [0]. TLDR: - Someone is suing Uber for discrimination because drivers didn't allow the person's guide dog in the car. - Uber's terms state users can't sue Uber and must go through Uber's arbitration process - Uber's terms were presented in the "By continuing you agree to these terms" fashion - Person claimed they never agreed to arbitration and that they should be allowed to sue Uber, and a state court agreed > But the broader impact of the ruling is to put companies on notice that they can't bind users to restrictive terms merely by linking to those terms somewhere in a site or app's registration process. In order to create a legally binding contract, a tech company has actually put the terms in front of the user and get them to affirmatively agree to them. [0] https://arstechnica.com/tech-policy/2021/01/court-says-uber-cant-hold-users-to-terms-they-probably-didnt-read/ https://arstechnica.com/tech-policy/2021/01/court-says-uber-...
- m463 6y ago
  California allows you to opt-out of binding arbitration at the time of signing or for a period after signing.
  - colejohnson66 6y ago
    That’s actually part of the Federal Arbitration Act; It’s not specific to California. However, California’s labor laws do have some restrictions on arbitration in the workplace.

stunt 6y ago

Yes, as long as they make it a required step. It's your fault if you choose to not read it.

deleted 6y ago
[deleted]
nerdponx 6y ago
I am curious if there is any legal doctrine on this in any part of the world.
- wolco5 6y ago
  You could skip steps on some systems, put in null values, click yes get the next link and remove approval. There is no legal requirement you agree to use the service. The system may prevent access but that's not a legal requirement.
- 13415 6y ago
  In most EU countries ToS are pretty much void anyway because they tend to contain frivolous or illegal clauses. For example, a ToS is void in the EU that limits the consumer's rights for legal action in any way. Here is a list of unfair contract terms that will likely cause an EULA or ToS to have no legal binding at all: https://europa.eu/youreurope/citizens/consumers/unfair-treatment/unfair-contract-terms/index_en.htm https://europa.eu/youreurope/citizens/consumers/unfair-treat...
- ulucs 6y ago
  In Turkey the precedent is that not only ToS'es and any kind of pre-written contracts have to be fair by law (ie punitive measures for the customer while there is none for the firm will simply be thrown out by the court) and not include any unexpected conditions. Some time ago, the higher court ruled in favor of a guy who simply claimed he didn't read the long contract and the unexpected conditions shouldn't have been enforceable. Also all consumer disputes below a certain amount have to be resolved by consumer referees, so no binding arbitration clauses here either.
lcall 6y ago
Too bad the parent was down-voted. IANAL but I think from other reading that it is correct at least in the USA. I think if one does not read & agree, it is dishonest to say you did.

mkl95 6y ago

It should be fairly easy to do this with something like Hotjar. Although I'm not sure if it is legally feasible to do it without the user's consent, especially in Europe.

tmikaeld 6y ago
You'd just have to agree to the agreement to be tracked first. Though, GDPR stipulates that if it's a legal requirement for the service to work (which is the case) then it's not required to log visitor approval.

albertgoeswoof 6y ago

This is why they’re non enforceable in a real court. If I put the rights to your inheritance in a tos no judge is actually going to enforce that, because no one would reasonably sign that away for access to a website. In reality only things which you would reasonably expect to be in a tos or privacy policy could be enforced, given 99% of users don’t read them, or understand them.

vlovich123 6y ago
That sounds like how you wish the works worked vs how it does. Are you aware of a single court case where a judge dismissed it on those grounds?
- still_grokking 6y ago
  I don't know about US law but at least in Germany it's really like pointed out. There is a law governing TOS terms, and it says among other things that the TOS can't contain unexpected und unrelated terms. So if you write for example into the TOS governing your website something like that every visitor owes you 1000 bucks that won't be enforceable. The TOS related legislation is nothing new. It was there already in the analog age to prevent companies form tricking people into signing inappropriate contracts.
nikanj 6y ago
Luckily they don't end up in real courts, because corporations go for mandatory arbitration nowadays.
lcall 6y ago
IANAL, but it seems like I have read multiple times (incl. on HN discussions, maybe by a lawyer) that such agreements are in fact enforceable in real courts, at least in the USA. I read many years ago that in the 9th circuit one provision was struck down, that the user was bound by any changes posted online w/o notice, but I don't know the status of that anywhere now.

zxienin 6y ago

The way website.com will start dealing with that, is to block end users to spend legally minimum amount of time on ToS.

Wowfunhappy 6y ago
Then they will lose users, though.
- zxienin 6y ago
  Would’ve been my thought too. Yet look at what happened to EU GDPR cookie rollouts.
  - Wowfunhappy 6y ago
    Those only take a few seconds. We're talking about at minimum a solid five minute blockade—and I would posit it really needs to be a couple of hours or more, given the length of these agreements. If a TOS is important enough to a company that they're willing to impose a two hour waiting period on customers, I'd say that's their prerogative. It would likely be effective in getting many users to read the agreements.
Enginerrrd 6y ago
That won't work. The real answer is to make it 100 words or less.

alsetmusic 6y ago

I don’t think time spent would matter if someone took the deliberate action of clicking “Accept.” It’s like arguing that you didn’t read a contract before you signed. You still signed. I’m not arguing in favor of TOS. I just don’t buy this. The “I do not agree,” method reminds me of the tactics of “sovereign citizens.” They try to game things via highly specific language. People think they can loophole the system, but still get snared. SCs still go to jail.

rusk 6y ago
> You still signed Prove it was me that signed. Prove it was me that clicked accept.
- aflag 6y ago
  In order to access the service you need to register. The registration form would not allow you to register without accepting it. They only need to prove that you indeed access the service. That doesn't seem too hard to prove for most services out there, or at least the most popular ones.
  - icedchai 6y ago
    I think you missed the point. They can't prove it was him actually filling out the registration form, only someone from some IP address at a specific time. They can't prove the person who logs in using that registered username/password is the same one that accepted the TOS. ToSes are mostly useless. They generally contain a line that indicates the terms can change at any time and you accept them by continuing to use the service.
    - aflag 6y ago
      I guess you'll need to convince the judge that there's reasonable doubt that you did not create the Facebook account that you use and that you were unaware of the ToS and not acting in bad faith. Not saying it's impossible, but it's not as difficult to enforce the ToS as it has been suggested. They are certainly not useless.

vntok 6y ago

For those reading, be aware that while signing "I do not agree" is borderline fraudulent, at least it's not clear user impersonation ie identity theft. There are people who do similar things but sign "Daffy Duck" or even "Barack Obama". Someday they'll be in for a surprise visit.

wolco5 6y ago
Not true at all. No one is coming for a visit ever. You could be known as Daffy Duck or Obama or call yourself that. There is no legal requirement to use a legal name. What sites do if a legal name is required is to require a credit card and get the info from there. Clicking,I do not agree is not borderline fraud. Turning off javascript and not getting a tos prompt is not fraud either.
- aflag 6y ago
  I think disabling javascript could be considered hacking the software.
  - hansvm 6y ago
    Intent might matter a little. I wouldn't be surprised if disabling JS for the purpose of bypassing an access control falls afoul of the CFAA but intentionally browsing the web without JS (e.g. via lynx) does not. If that were the case, they'd have to prove that you intentionally circumvented their access controls.
gorgoiler 6y ago
Moreover: signing as “do not agree” and then using the service anyway is about as clear-cut as an abuse-of-service can be. Aka “wire fraud”, if you’re a DA.

13415 6y ago

The best thing to do is to send them by snail mail a printed copy of their ToS with the changes highlighted that you'd like to suggest, accompanied by a friendly letter stating that they are free to send you back their suggestions for further negotiation and that no further action on their behalf is needed if they accept the suggested changes.

Engineering-MD 6y ago
But would this hold up in a court?

khuzudin 6y ago

This article is about a plug-in that recognizes TOS agreements and summarizes them for you. I've often wondered if it's feasible to create a plug-in that recognizes TOS agreements and clicks the Accept button for you. It should also make a record showing that you never saw the agreement and did not click the button. Maybe it could aggregate these records to show that for a given website there are thousands of users who have never seen the TOS. Given that most people seem to think these click-through agreements are already pretty weak from a legal standpoint, I wonder how much more it would take to make them completely worthless.

chki 6y ago

This will depend on your specific jurisdiction but just to give you an example of the law in Germany (which I expect to be similar in other places, especially in Europe where a EU-regulation was created on the basis of the German law): Terms of services ("Allgemeine Geschäftsbedingungen" (AGB)) are pre-formulated clauses that one party introduces into the contract without giving the other party the possibility to object to or at least negotiate these clauses. The ToS are part of your legal contract with the other party, regardless of whether you read them. One example of ToS could also be the house rules in your local gym, which possibly weren't even handed out to you but instead they are up on a wall somewhere near the front desk. The important thing is that you need to have the _possibility_ to read them (if you are blind they will need to make sure there is a workaround). Depending on the circumstances the obligation to make sure that you are aware of the ToS can be more strict. The important caveat to using terms of services as a company is a strict content control. § 307-309 of the german civil law define certain things that you cannot possibly put in your ToS. And if a company still does it, a Court will not try to interpret the rule in a favorable way for them, they will strike it out completely. (no "geltungserhaltende Reduktion") Examples of content control include that when buying something it is impossible to sign away (some of) your rights as a consumer for a faulty product. But there are also some "catch-all" clauses in there that will check whether parts of the ToS placed an unfair burden on you as a consumer. ToS can also be void if they are unclearly written. Edit: Signing with "I do not agree" is an interesting approach and sometimes these "hacks" can actually work in Court. That being said, it would probably not hold up. Pressing on "accept" is not somehow invalid just because you said so somewhere else. Off topic but an interesting example of a similar hack is this case of a man changing a pre formulated contract with his bank which they send to him first and then signed it when he had send it back to him. https://www.themoscowtimes.com/2013/08/14/man-who-outwitted-bank-ends-700k-lawsuit-a26770 https://www.themoscowtimes.com/2013/08/14/man-who-outwitted-...

gorgoiler 6y ago
Thank you. This was fascinating. Re: I do not agree: the only way my sophomoric hack might ever actually work would be if I argued that clearly the website’s didn’t bother reading my contract response — if they had they would have correctly interpreted my actions as meaning I didn’t agree to the terms. But then I went ahead and used the site anyway. Someone who didn’t agree to the terms would never do such a thing. It is a very silly idea of mine.

hundchenkatze 6y ago

Here's a case between Uber and a blind person [0]. TLDR: - Someone is suing Uber for discrimination because drivers didn't allow the person's guide dog in the car. - Uber's terms state users can't sue Uber and must go through Uber's arbitration process - Uber's terms were presented in the "By continuing you agree to these terms" fashion - Person claimed they never agreed to arbitration and that they should be allowed to sue Uber, and a state court agreed > But the broader impact of the ruling is to put companies on notice that they can't bind users to restrictive terms merely by linking to those terms somewhere in a site or app's registration process. In order to create a legally binding contract, a tech company has actually put the terms in front of the user and get them to affirmatively agree to them. [0] https://arstechnica.com/tech-policy/2021/01/court-says-uber-cant-hold-users-to-terms-they-probably-didnt-read/ https://arstechnica.com/tech-policy/2021/01/court-says-uber-...

m463 6y ago
California allows you to opt-out of binding arbitration at the time of signing or for a period after signing.
- colejohnson66 6y ago
  That’s actually part of the Federal Arbitration Act; It’s not specific to California. However, California’s labor laws do have some restrictions on arbitration in the workplace.