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> From a factual perspective, I honestly think that shouldn’t be controversial: it’s well-understood that very few people actually read those things, they just
by otterley 3mo ago
> From a factual perspective, I honestly think that shouldn’t be controversial: it’s well-understood that very few people actually read those things, they just want to get them out of the way
There’s no way this would fly. “I didn’t read it” can’t possibly be an excuse to avoid being bound by an agreement. Every party to an agreement that flaunted its terms, even though they took advantage of the benefits granted by it, would invoke it as a defense, and it’s irrefutable. The system would completely fall apart if this happened.
There’s a balance that needs to be carefully managed here. Yes, fairness to consumers is important. But you can’t destroy the incentive to produce value in so doing.
- deaton 3mo agoBut "its specifically engineered to ensure that nobody reads it" is a real argument
- otterley 3mo agoWhere has this ever been adjudicated?
- bluGill 3mo agoOf you need a nonstandard contract then you need to provide proof that it was understood. These are not provided in a context where I would expect anyone reading it to have a lawyer to advise so they obviously don't understand it
- otterley 3mo agoBy that same logic, do you believe ignorance of the law is a valid defense to a criminal charge? Laws are also written by lawyers.
- bluGill 3mo agoNo, but I do believe that if the jury doesn't find it was obviously a crime without any being told the law then it wasn't a crime. That is the text of the law isn't important until guilty is decided. (So the jury can decide degree if that is a question for the jury, otherwise the judge needs to know for sentencing but the jury doesn't care)
- Avicebron 3mo ago> There’s a balance that needs to be carefully managed here. Yes, fairness to consumers is important. But you can’t destroy the incentive to produce value in so doing. The value is derived from the people consuming the product. Placing the "incentive to produce value" above the people who presumably are the source of this value seems...misaligned.
- otterley 3mo agoIf there’s no product or service to be consumed, there’s no value produced either. That’s the point: it’s harmful to eliminate the incentive to produce.
- c0_0p_ 3mo agoThat argument has actually worked in some cases, especially when you need to click away to actually access the document. I assume it's why we see more and more examples where you need to scroll the full body of text in order to "agree".
- znnajdla 3mo ago> “I didn’t read it” can’t possibly be an excuse to avoid being bound by an agreement Only engineers have trouble understanding this. It can be a reasonable defense, and it has successfully been used in courts of law many times. The law is not a machine that compiles text like code literally. Imagine someone who coerces a dying or sick person to sign an agreement they couldn’t possibly be in a reasonable state of mind to understand what they were doing -- the law can and does invalidate such “contracts”. That is the same principle behind age of consent laws. The law could theorerically (and does) invalidate “agreements” which no one is reasonably expected to read and understand.
- otterley 3mo agoI am an attorney, and am aware of certain exceptions. But these are exceptions and not the general rule, which is what I am speaking of. > The law could theorerically (and does) invalidate “agreements” which no one is reasonably expected to read and understand. I haven’t heard of a single case where an agreement was voided because “no one could reasonably be expected to understand it.” Unless the language was so impenetrable or vague that the agreement itself could not be discerned. Lawyers tend not to write such agreements.
- IsTom 3mo agoEULAs are restricted in power in EU and at least to me these cookie banners are similar in spirit.
- tacitusarc 3mo agoBut it is complicated, no? Even if you click you agree, if the you thought you were agreeing to one thing but actually agreed to another because they buried the lede, “I didn’t read it” is a reasonable defense.
- otterley 3mo agoIt just won’t fly in court. Full stop. There are perhaps other defenses to be raised, like unconscionable terms, but not that one.
- victorbjorklund 3mo agoIt can and has been in many cases in many legal systems. For example, let’s say you walk into my store to buy a dish washer. I say ”here is an extended warranty that I will give you. Just sign” you sign it instead of reading 15 pages of boilerplate. In the end of the document it says you now owe me 10 billion dollars. Doubt I will be able to enforce it in most legal systems.
- otterley 3mo agoThat’s not an “I didn’t read it” defense. That’s a “term is this contract is unconscionable” defense. They’re not the same thing. I was speaking strictly of the former. Also, striking an unconscionable term typically does not void the whole contract. Just the term in question.
- bryanrasmussen 3mo agoAs a general rule I believe many online terms of use, eulas and similar online contracts are examples of procedural unconscionability, in that length is often too long that one can be expected to read it in the day to day action of "surfing the web", I believe this is also the opinion of the EU and many of its member states, hence the limitations found on enforcement of such contracts. Aside from that many of these contract have terms that might be considered substantive unconscionability - for example if terms state that what you post can be used by the company that owns the service for marketing of the company or the service I feel this would not make it through most legal systems that I feel before the attempt are not inherently corrupt.
- otterley 3mo agoI would personally be shocked if the EU voids click-wrap agreements for unconscionableness based on the process alone. I’m not super familiar with EU law; is that what it truly says? I rather doubt it because I do business in the EU and have been asked to agree to terms as a condition of making purchases online there.
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- bee_rider 3mo agoI don’t see how we could possibly prove that the person who clicked “I agree” is still the person using the computer. Or that any actual human is aware that an agreement was made (since an AI can find a checkbox nowadays or software can be configured to bypass it). One way to add balance could be to require people asking for contracts to actually treat them like real serious legal documents, show up for the signing, and figure out who they are making an agreement with.
- otterley 3mo agoThat doesn’t matter. If you authorize an agent—human or mechanical—to enter into agreements on your behalf (even by mistake), and the agent presents itself as operating on your behalf, the agent’s decisions will be treated as though they were your own. Prinicipal-agent law predates computers by a very long time.
- bee_rider 3mo agoWhat if an IT guy installs one of those “cookie banner be gone” extensions without the user’s permission?