So many online services, so much legal information, usually written in confusing ways.
For example, in data processing addendum, Porkbun uses the term “Controller”, which is defined as:
(d) “Controller” as used in this DPA, means Customer.
Why not just call it Customer?
Worse yet, just like many services, Purelymail has this in their ToS:
The Company reserves the right to change this agreement at any time. You are responsible for regularly reviewing these Terms. Continued use of the Service after such changes shall constitute your consent to them.
In this case, there isn’t even a date of last update. Am I supposed to have some scripts scraping all legal documents of most services every hour and comparing checksums to figure out if something has changed?
But how should I even keep track of legal agreements of many many companies including any affiliated third parties I implicitly agree to use?
Because it sounds like I should also be concerned about those:
Sub-processors authorised under Section 7 of the DPA process the personal data described above for the purposes listed above and only for the duration necessary to perform the sub-processed activity.
If I was to read, understand, and keep track of everything, I feel that would in fact just become my full-time job. Especially since they often also reference laws, something I would also need to know and understand.
Subject to applicable law […]
Which is what?
Mostly don’t even bother. Most of the stuff I use is foss and those that aren’t are usually recommended by the community enough that I trust but don’t really verify (like Porkbun; the ToS might not be good but other registrars are worse)
usually I drag my sack across the screen and tap the accept button with the tip of my cock.
why?
TOS are notoriously difficult to maintain in court and usually only result in termination of services.
edit: yes, my screen looks like a Jackson Pollock.
Be careful about using AI to summarize a TOS. Some companies have been caught adding hidden prompts to steer your AI from telling you about parts of their TOS that they don’t want you to know about. Regulatory information that they’re required to disclose for example.
That sounds like a good entry for the Consumer Rights Wiki. What companies are doing this? I couldn’t find any on a quick search, but “prompt injection” is probably skewing the results down the wrong path here.
Fwiw I use tosdr.org extension on my browser.
https://tosdr.org/en is pretty good.
Many TOS are just actually not legally binding.
For example, “browsewrap” in which “using this service constitutes agreement to our TOS” in which the service never actually shows you the TOS, is almost completely non-binding. This was established in Ticketmaster v. Tickets.com, 2003.
A TOS is, legally speaking, considered a contract. If the terms of service are updated and the user is not informed of it, continued consent cannot be assumed and the contract is null. This is a basic feature of contract law. This is also what prevents you from, for example, signing a lease on a home and then editing the lease after all parties have signed it to give you a monthly rental fee of $1. This annulls the new contract unless it’s re-signed.
In addition, contract law generally states that a given contract “must be intelligible to all parties”. Meaning that if the company obfuscates the TOS behind an unreasonable amount of jargon and doublespeak a judge can easily rule it as invalid if they were so inclined.
Any TOS that includes a statement about arbitration or waiving of class action rights are almost universally unenforceable because they violate consumer protection laws. This isn’t true 100% of the time, but a good lawyer will make this rule in your favor more often than it wouldn’t. If you’re bound by an arbitration clause, and you have a reasonable complaint, you can just send the company a “demand for arbitration” via your lawyer and they’ll usually have to fold.
Now, one big caveat about all this: the “subject to applicable law” line is necessary because contract law is handled differently in different areas. In the US, it is decided by state law. Naturally other countries may also have their own different implementations. I’ve done my best to make all of this research as universal as possible, but, details may be different depending on where you are located.
My primary sources for most of this were Bridge Legal and US Law Explained dot com supplemented by checking for court cases on OpenCaseBook (one was linked previously in this post). The US Law Explained source also lists a few more notable court cases at the bottom of their article that can be looked up at OCB.
Be careful of just dismissing a ToS simply because some parts of it aren’t legally binding. A lot of it is binding and if you think otherwise, you’ll need to convince a judge of why that is. That’s going to require time and money that could have been saved by using another service with a more reasonable contract.
Looking at your example of arbitration clauses, while those may not work in some countries, in the US that’s a different story. You can have an attorney argue that this term should not be binding, but there are varying factors that a judge will look at to determine this. Was there an option to opt out? How easy was it to opt out? How much time were you given to opt out? Etc.
Arbitration clauses can be useful for courts since they offload work to external parties. So, there is a little extra work on your part to convince the judge that they should rule out that term. In most cases your best bet will be to have the judge allow you to use an unbiased arbitrator rather than the one that’s usually specified in the ToS. Even then, you’ll still need to convince a judge of that.
For example, “browsewrap” in which “using this service constitutes agreement to our TOS” in which the service never actually shows you the TOS, is almost completely non-binding.
That’s likely why there are so many ToS that put these in your face and have you click a button before you can continue with anything else. So, browsing a website probably wouldn’t be binding, but creating an account and using their service probably would be.
That’s pretty much what I gathered from my research as well. All of this would require time and money for legal resources. If you’ve got those, go wild. If you don’t, it’s still worth reading the TOS.
It’s just good to also note that many of the scarier clauses aren’t actually enforceable, and rely on the user’s fear to function.
In the US, haven’t there been numerous court rulings basically saying “of course no one reads these every time they install/update software or start a new subscription, so the common-sense parts hold and the rest is effectively meaningless”?
I know from my jurisdiction, that they can’t hide unusual clauses. So there is no point of fully reading the ToS, because most of it can be just the standard shit. I usually just look what am I allowed to do and what not and what are the limits. Before a law changed here about canceling, I read that part as well, but now I know the minimum by law, which they can’t get worse. For example that subscriptions can only renew on a monthly bases at some point and that canceling needs to be that easy as you can subscribe. If you can subscribe in 2 clicks online on their website, you need to be able to cancel within 2 clicks as well on their website.
The rest is standard shit. You own nothing, they can terminate at any time, they can’t be held accountable and so on. The neat part is, this isn’t even true. They can’t make me wave my copyright, termination must be within reason and they can held be accountable for certain things. Of course I would need to go to court, to fight it, but certain things quickly fall in court.
Problem is, there may be hidden limitations to how you can use the service.
And so far the worst thing I read was ToS of student-run network provider at the dormitory of University I went to, which stated that in case of suspicion the user is required to allow access to his/her computer. If refused, it would be treated as a confirmation of the suspicion, and the result could be disciplinary action from the University.
And the full rules were so tight you basically immediately broke them by connecting to the network.When I asked about it, they assured me those rules are never actually imposed, but nah.
yeah almost every single one has the we can change this at any time bs.
Just get piss drunk before agreeing to it.
