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I think this is really interesting and important. We (web developers, entrepreneurs) can't expect to just slap a "Terms of Service" link in tiny grey font at t

I think this is really interesting and important. We (web developers, entrepreneurs) can't expect to just slap a "Terms of Service" link in tiny grey font at the bottom of every page and expect that to be legally binding. We can't expect agreement without asking for it. It's especially problematic for sites which don't require registration (and I'd like to see those ToS disappear). One site I saw today had a ToS link but no about page. Which is really more important?

tptacek 14y ago
Well. You can't use a browse-wrap contract to enforce a binding arbitration clause to strip your customers of the right to avail themselves of civil courts. That doesn't mean every other term of a browse-wrap TOS would necessarily fail in court. It is particularly difficult to compel arbitration in consumer relationships; its doable, but clauses that seek to compel arbitrary have to meet a higher standard than some other contract terms do.
- larrys 14y ago
  "That doesn't mean every other term of a browse-wrap TOS would necessarily fail in court." Not to mention the fact that what happened in this court on this issue would not necessarily happen in every court viewing the same facts. Or whether in some cases a company makes a conscious decision to do what they know might fail in order not to add friction to the process. Clean up the mess afterwords, get the extra business now. "Polute the river and if we get get caught and fined, pay the fine!" Separately, what I would like that I haven't seen in this thread are some thoughts on how a company like Zappos could have made this type of a mistake if it is so obvious.
- hopeless 14y ago
  There are obviously legal technicalities but just in terms of humanely treating your users — don't assume they've agreed to something they haven't read.
darkarmani 14y ago
If sites don't require registration why would they require a ToS? How would they prove a violation of the ToS if they can't tie you back to the non-existing registration?

tptacek 14y ago

Well. You can't use a browse-wrap contract to enforce a binding arbitration clause to strip your customers of the right to avail themselves of civil courts. That doesn't mean every other term of a browse-wrap TOS would necessarily fail in court. It is particularly difficult to compel arbitration in consumer relationships; its doable, but clauses that seek to compel arbitrary have to meet a higher standard than some other contract terms do.

larrys 14y ago
"That doesn't mean every other term of a browse-wrap TOS would necessarily fail in court." Not to mention the fact that what happened in this court on this issue would not necessarily happen in every court viewing the same facts. Or whether in some cases a company makes a conscious decision to do what they know might fail in order not to add friction to the process. Clean up the mess afterwords, get the extra business now. "Polute the river and if we get get caught and fined, pay the fine!" Separately, what I would like that I haven't seen in this thread are some thoughts on how a company like Zappos could have made this type of a mistake if it is so obvious.
hopeless 14y ago
There are obviously legal technicalities but just in terms of humanely treating your users — don't assume they've agreed to something they haven't read.

darkarmani 14y ago

If sites don't require registration why would they require a ToS? How would they prove a violation of the ToS if they can't tie you back to the non-existing registration?