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Can Terms of Service Agreements Allow Companies to Skirt Consumer Protection Laws?
We've all done it: checked the box and confirmed that we are bound by a company's "Terms of Service" without so much as glancing at them. These days, "Agree to Continue" is a part of the required ritual, not only for software and online services, but for hardware as well. Before you use your new iPhone, draft a Word document, call an Uber, or even order a pizza, you will have agreed, sight unseen, to a set of standardized terms drafted by a company's lawyers. For most people, the choice is simple. Most users do not have the time or inclination to read through dozens of pages of legalese before reviewing the morning's tweets, and if millions of users are agreeing to these terms, how bad can they be? If a company's Terms of Service become too onerous, or stray too far from accepted industry norms, the company will likely be called out by a sophisticated user or industry watchdog.
This system has functioned with surprising efficiency during a period of explosive growth, and at this point nearly all e-commerce depends on users agreements to contracts virtually no one has ever read. Courts are well aware of that dynamic, and many have commented on it, but have largely upheld these kinds of agreements based on traditional contract law principles. The "click" of agreement, or the ongoing use of the product or service, functions as the user's agreement to the Terms of Service, regardless of whether the user knows precisely what the Terms say. Contracting parties are assumed to have reviewed and agreed to all terms of their agreement.
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