6 ms·

When ‘Liking’ a Brand Online Voids the Right to Sue

67 points by 001sky 13y ago

fiatmoney 13y ago
Similarly, I have a sticky note attached to my monitor which states that anyone who runs their code on my machine (via Javascript, for instance) in exchange for any benefit (tracking data or ad impressions, for instance) must submit any claims against me to my chosen artbitrator (hi, mom!). I also plan on stealing a lot of cereal. When I am effectively the server's server via running code on my machine, it seems like I have exactly the same right to declare unilateral terms-and-conditions for the use of my resources.
- pdkl95 13y ago
  Given how "easy" these "agreements" are for most people to discover, I've always liked the idea of a client-side HTTP header: X-Client-ToS-Policy: TOS_ACCEPT=NONE,"By providing me a web page, you agree that our relationship has no additional terms or agreements beyond those already established in law." It's machine readable and provided before the page is delivered, so it should be at least as enforcible as the nonsense "terms" businesses seem to like these days.
bittermang 13y ago
One of the most amazing quarks of the American legal system is how you can rescind, revoke, and give away your rights which are protected by that very same legal system, and it's all perfectly legal to do so.
- brianchu 13y ago
  IANAL, but a company claiming that you give up your rights is not the same thing as you actually giving up your rights. All these companies are essentially doing is claiming that you are giving up your rights. It remains to be seen whether these provisions will actually hold up with legal force in court (I doubt most of them will).
  - jeffdavis 13y ago
    There has to be a better way than just floating in a grey area and hoping the courts agree with you. I think the states need to set up some basic standards for how some of these agreements need to happen, and make them very clear. For instance, there could be a law that if you sign away your right to sue, it must be in writing.
    - qq66 13y ago
      The courts have established that certain contracts are simply invalid by their nature, and many instances of "signing away your right to sue" fall in this category. The real reason that companies have you do this is to reduce the chance that you'll sue, not reduce the effectiveness of such a lawsuit.
      - Sharlin 13y ago
        The real WTF is that outright lying to the customer in such a manner is legal at all.
        thaumasiotes 13y ago
        The idea of a penalty for offering terms that a reasonable lawyer could have told you ahead of time were unenforceable appeals to me too. I think it could use a little more thought, but frankly I'm surprised it doesn't see broader discussion (if it does, I'm missing it).
        qq66 13y ago
        In some situations (not sure which), having one part of a contract ruled unenforceable makes other parts unenforceable.
        thaumasiotes 13y ago
        I believe (could be wrong) that that is "true in the general case". However, in the actual general case, a contract includes a "severability clause" specifically providing that invalid provisions do not render other provisions invalid.
tim333 13y ago
Sounds like General Mills are trying it on a bit. I mean they can write in their terms that anyone who likes them on Facebook is not allowed to sue but it doesn't mean a court will enforce that.
- rhizome 13y ago
  Whatever the result, it will be tried, and probably by a huge company with the resources to push a verdict (or verdict-delaying settlement) through, to the degree that's possible. Worse things have persisted, but I don't remember this kind of cowboy tort-reform ever making headlines upon successful application. There are at least as many lawyers who depend on these suing rights to exist that can provide better pushback than any layman. General Mills has to listen to nobody except the courts.
malka 13y ago
I'm not sure if I really want to eat the food of a brand that is that much afraid to be sued. Says a lot about the confidence they have in their products.
- thaumasiotes 13y ago
  Actually, I don't think it says anything about their products, or General Mills' confidence in the same, except that those products are so common that they grow lawsuits the same way bread grows mold. Being afraid of lawsuits isn't necessarily related to believing that anyone anywhere might have any reasonable grounds to sue you; crazy nutcases won't make you whole after you defend yourself and win.
mcv 13y ago
Isn't this basically a company unilaterally declaring: "The law does not apply to us for all practical purposes"? Customer protection laws are meaningless if the only way to become a customer is to give up your rights protected in those laws. Of course smart, well-informed consumers will automatically avoid becoming customers of those companies, but who the hell visits a webpage to read a boring policy before picking a box of cereal from the shelf? These kind of attempts to take away consumer rights shouldn't just be void, they should be illegal. Simply suggesting that consumers might have given up their rights, should by itself be worthy of a fine.

67 points by 001sky 13y ago

Similarly, I have a sticky note attached to my monitor which states that anyone who runs their code on my machine (via Javascript, for instance) in exchange for any benefit (tracking data or ad impressions, for instance) must submit any claims against me to my chosen artbitrator (hi, mom!). I also plan on stealing a lot of cereal. When I am effectively the server's server via running code on my machine, it seems like I have exactly the same right to declare unilateral terms-and-conditions for the use of my resources.

pdkl95 13y ago
Given how "easy" these "agreements" are for most people to discover, I've always liked the idea of a client-side HTTP header: X-Client-ToS-Policy: TOS_ACCEPT=NONE,"By providing me a web page, you agree that our relationship has no additional terms or agreements beyond those already established in law." It's machine readable and provided before the page is delivered, so it should be at least as enforcible as the nonsense "terms" businesses seem to like these days.

bittermang 13y ago

One of the most amazing quarks of the American legal system is how you can rescind, revoke, and give away your rights which are protected by that very same legal system, and it's all perfectly legal to do so.

brianchu 13y ago
IANAL, but a company claiming that you give up your rights is not the same thing as you actually giving up your rights. All these companies are essentially doing is claiming that you are giving up your rights. It remains to be seen whether these provisions will actually hold up with legal force in court (I doubt most of them will).
- jeffdavis 13y ago
  There has to be a better way than just floating in a grey area and hoping the courts agree with you. I think the states need to set up some basic standards for how some of these agreements need to happen, and make them very clear. For instance, there could be a law that if you sign away your right to sue, it must be in writing.
  - qq66 13y ago
    The courts have established that certain contracts are simply invalid by their nature, and many instances of "signing away your right to sue" fall in this category. The real reason that companies have you do this is to reduce the chance that you'll sue, not reduce the effectiveness of such a lawsuit.
    - Sharlin 13y ago
      The real WTF is that outright lying to the customer in such a manner is legal at all.
      - thaumasiotes 13y ago
        The idea of a penalty for offering terms that a reasonable lawyer could have told you ahead of time were unenforceable appeals to me too. I think it could use a little more thought, but frankly I'm surprised it doesn't see broader discussion (if it does, I'm missing it).
        qq66 13y ago
        In some situations (not sure which), having one part of a contract ruled unenforceable makes other parts unenforceable.
        thaumasiotes 13y ago
        I believe (could be wrong) that that is "true in the general case". However, in the actual general case, a contract includes a "severability clause" specifically providing that invalid provisions do not render other provisions invalid.

tim333 13y ago

Sounds like General Mills are trying it on a bit. I mean they can write in their terms that anyone who likes them on Facebook is not allowed to sue but it doesn't mean a court will enforce that.

rhizome 13y ago
Whatever the result, it will be tried, and probably by a huge company with the resources to push a verdict (or verdict-delaying settlement) through, to the degree that's possible. Worse things have persisted, but I don't remember this kind of cowboy tort-reform ever making headlines upon successful application. There are at least as many lawyers who depend on these suing rights to exist that can provide better pushback than any layman. General Mills has to listen to nobody except the courts.

malka 13y ago

I'm not sure if I really want to eat the food of a brand that is that much afraid to be sued. Says a lot about the confidence they have in their products.

thaumasiotes 13y ago
Actually, I don't think it says anything about their products, or General Mills' confidence in the same, except that those products are so common that they grow lawsuits the same way bread grows mold. Being afraid of lawsuits isn't necessarily related to believing that anyone anywhere might have any reasonable grounds to sue you; crazy nutcases won't make you whole after you defend yourself and win.

mcv 13y ago

Isn't this basically a company unilaterally declaring: "The law does not apply to us for all practical purposes"? Customer protection laws are meaningless if the only way to become a customer is to give up your rights protected in those laws. Of course smart, well-informed consumers will automatically avoid becoming customers of those companies, but who the hell visits a webpage to read a boring policy before picking a box of cereal from the shelf? These kind of attempts to take away consumer rights shouldn't just be void, they should be illegal. Simply suggesting that consumers might have given up their rights, should by itself be worthy of a fine.