4 ms·

I any civilised jurisdiction such ToS are unenforceable. Why do firms continue to make unenforceable claims? (My least favourite are restriction of trade clau

by worik 5y ago

I any civilised jurisdiction such ToS are unenforceable. Why do firms continue to make unenforceable claims? (My least favourite are restriction of trade clauses in employment contracts that are simply illegal, unless paid for, where I come from. But they appear all the time in contracts)

scoopertrooper 5y ago
I just skimmed the ToS, the only remedy they offer to a violation of the terms is a denial of access to their service. Which is something they definitely can enforce.
Mezzie 5y ago
Because it requires lawyers to prove that the claims are unenforceable, and most smaller companies aren't going to have the pockets needed to sustain the legal back-and-forth, which forces them to settle even if the big company is in the wrong. It's legal 'chicken'.
swyx 5y ago
threat of lawyers and settling out of court is a powerful extralegal deterrent all on its own.
kingcharles 5y ago
What do you mean unenforceable? In many jurisdictions it is a criminal offense to violate the terms of service of a web site. In Illinois the first violation is a misdemeanour punishable by a year in the county jail. Further violations carry 2-5 years in prison.
- rndgermandude 5y ago
  A ToS is limited in what it can legally contain by law. The EU e.g. has 93/13/EEC aka "Unfair contract terms directive" which bans a lot of shenanigans in ToS (e.g. mandatory location for law disputes). Or just writing in your ToS that "you agree that contract parties are not bound by the EU GDPR" for another example, like some companies do write, doesn't mean this is a enforceable clause. Another example, Germany recently made a law that mandates automatic subscription renewals - such as mobile phone contracts, gym memberships or online services - can be cancelled every month (there already was a law before that limited the initial subscription contract to a duration of max 2 years). If there are some laws specifically that disallow general "benchmarking" I don't know, but I wouldn't be surprised if at least in the EU such a clause would be unenforcable. That sounds like a clear unfair one-sided advantage (the customer cannot check the services actually provided match what was promised). Publication of such results is another matter. Also, I am curious about what you said about Illinois? Sounds bonkers. I mean I could imagine criminal prosecution for a set of defined, deemed specially bad violations that constitute crimes, like "hacking" and "sabotage", but not for things like e.g. "failure to pay membership dues in time" and other civil matters. Then again, I remember that case of some guy in Florida who couldn't keep his lawn nice and green, and didn't have the money to replace the lawn again and again, so the HOA took him to court, he was ordered to replace the lawn (which he still couldn't afford) and ended up in prison for a couple of days for "contempt of the court" until some friends and neighbors replaced the lawn.
- goodpoint 5y ago
  > it is a criminal offense to violate the terms of service of a web site Sorry, what? Where? How's that even possible?
  - dmurray 5y ago
    Among other places, in the United States. The CFAA [0] prohibits "access[ing] a computer without authorization or exceed[ing] authorized access". It's interpreted extremely broadly by the courts. [0] https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act
  - kingcharles 5y ago
    Here in Illinois they have a specific law which makes violating ToS a criminal offense punishable by up to 5 years in prison. https://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K17-51 https://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=0...
    - goodpoint 5y ago
      This means I could set up watchcutecatpictures.org with some fine print that prohibits watching more than 10 cats a day and call the cops on random people. What legal reasoning exists to give companies this kind of unchecked power?
      - kingcharles 5y ago
        Just to make certain put a button that says "I agree" next to a link to the T+Cs. >According to the court, DeJohn's claim that he did not read those terms was >irrelevant because, absent fraud (which was not alleged), "failure to read a >contract is not a get out of jail free card." https://www.wilmerhale.com/en/insights/publications/click-wrap-agreement-found-not-to-be-an-unenforceable-adhesion-contract-april-25-2003 https://www.wilmerhale.com/en/insights/publications/click-wr...
xorcist 5y ago
It doesn't need to be legally enforecable to be useful. At the very least, it is an indication of where they stand. They are free to take any customers they want, and if they say they don't want customers with a certain use case, that's good enough for me.

by worik 5y ago

scoopertrooper 5y ago

I just skimmed the ToS, the only remedy they offer to a violation of the terms is a denial of access to their service. Which is something they definitely can enforce.

Mezzie 5y ago

Because it requires lawyers to prove that the claims are unenforceable, and most smaller companies aren't going to have the pockets needed to sustain the legal back-and-forth, which forces them to settle even if the big company is in the wrong. It's legal 'chicken'.

swyx 5y ago

threat of lawyers and settling out of court is a powerful extralegal deterrent all on its own.

kingcharles 5y ago

What do you mean unenforceable? In many jurisdictions it is a criminal offense to violate the terms of service of a web site. In Illinois the first violation is a misdemeanour punishable by a year in the county jail. Further violations carry 2-5 years in prison.

rndgermandude 5y ago
A ToS is limited in what it can legally contain by law. The EU e.g. has 93/13/EEC aka "Unfair contract terms directive" which bans a lot of shenanigans in ToS (e.g. mandatory location for law disputes). Or just writing in your ToS that "you agree that contract parties are not bound by the EU GDPR" for another example, like some companies do write, doesn't mean this is a enforceable clause. Another example, Germany recently made a law that mandates automatic subscription renewals - such as mobile phone contracts, gym memberships or online services - can be cancelled every month (there already was a law before that limited the initial subscription contract to a duration of max 2 years). If there are some laws specifically that disallow general "benchmarking" I don't know, but I wouldn't be surprised if at least in the EU such a clause would be unenforcable. That sounds like a clear unfair one-sided advantage (the customer cannot check the services actually provided match what was promised). Publication of such results is another matter. Also, I am curious about what you said about Illinois? Sounds bonkers. I mean I could imagine criminal prosecution for a set of defined, deemed specially bad violations that constitute crimes, like "hacking" and "sabotage", but not for things like e.g. "failure to pay membership dues in time" and other civil matters. Then again, I remember that case of some guy in Florida who couldn't keep his lawn nice and green, and didn't have the money to replace the lawn again and again, so the HOA took him to court, he was ordered to replace the lawn (which he still couldn't afford) and ended up in prison for a couple of days for "contempt of the court" until some friends and neighbors replaced the lawn.
goodpoint 5y ago
> it is a criminal offense to violate the terms of service of a web site Sorry, what? Where? How's that even possible?
- dmurray 5y ago
  Among other places, in the United States. The CFAA [0] prohibits "access[ing] a computer without authorization or exceed[ing] authorized access". It's interpreted extremely broadly by the courts. [0] https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act https://en.wikipedia.org/wiki/Computer_Fraud_and_Abuse_Act
- kingcharles 5y ago
  Here in Illinois they have a specific law which makes violating ToS a criminal offense punishable by up to 5 years in prison. https://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K17-51 https://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=0...
  - goodpoint 5y ago
    This means I could set up watchcutecatpictures.org with some fine print that prohibits watching more than 10 cats a day and call the cops on random people. What legal reasoning exists to give companies this kind of unchecked power?
    - kingcharles 5y ago
      Just to make certain put a button that says "I agree" next to a link to the T+Cs. >According to the court, DeJohn's claim that he did not read those terms was >irrelevant because, absent fraud (which was not alleged), "failure to read a >contract is not a get out of jail free card." https://www.wilmerhale.com/en/insights/publications/click-wrap-agreement-found-not-to-be-an-unenforceable-adhesion-contract-april-25-2003 https://www.wilmerhale.com/en/insights/publications/click-wr...

xorcist 5y ago

It doesn't need to be legally enforecable to be useful. At the very least, it is an indication of where they stand. They are free to take any customers they want, and if they say they don't want customers with a certain use case, that's good enough for me.