Don't bother. Just ban/declare invalid any surprising clauses, with a regularly updated list of prohibited abusive terms that people try to slip in.
Germany has an explicit rule like that (§ 305c BGB): terms that are so unusual that the counterparty didn't have to expect them are null and void, and any ambiguities are interpreted against the side using reusable T&C's. Terms are further invalid (§ 307 BGB) if they unfairly disadvantage the other party against good faith etc.
The real meat starts in 308 and following, explicitly banning many terms - for example arbitration requirements (309 item 14).
That's exactly how it should work, any legal system worth its salt should base consumer laws on consumer expectations and not any company's opinion. It's too easy for companies to produce a 300 pages document saying "you have no rights to anything, click accept" and that's why terms of services for consumer products cannot work.
Theoretically it already does in the US too. To some extent it does so even in practice. You already can't just write whatever clause you want into a contract, and "contracts of adhesion" are even more limited.
It's just that when we're talking about consumer contracts for such small quantities of money it's hard for a consumer to justify fighting anything at all. In a lot of ways this is the primary problem, not the contracts themselves. You'll never stop companies from trying to do bad things, but the way they can siphon, say, 50 cents worth of annoyance and bad practices away from 100 million people is the relatively new thing that we have no way of handling in our currently super-heavyweight legal system. We don't have anything suitable for dealing with that. Even a class-action lawsuit is hard to justify in such a case, the lawyers would eat 250% of the winnings.
I would say that this is hardly even worth worrying about, if the biggest problem someone has is 50 cents extra to a company you are living a charmed life, except that it at times feels like it's every single company I deal with doing this to me, so it adds up to something quite large. Everybody is getting shaved like this by a large number of companies. But it's hard to deal with, there's no single large locus you can focus on.
It's same in France yeah, any term can be tossed if arguably abusive and nothing is set in stone. So ofc we can renege them for a week, they re generally fair etc.
Where I live now, Hong Kong, even oral contracts have value, if it's written you re gonna give your kidney, you better book a surgeon. We cant regret a contract even the first week (they tried to pass a bill on that, it was rejected because inconvenient for companies...).
Surprisingly though, it makes for much more careful people, who care for, and respect, contracts. In France, you dont even have to pay rent, in HK, it's a kick in the ass and your stuff thrown aways a day after the missed deadline.
it seems hard to define what unexpected means, and that case laws to establish them would take ages, be difficult to predict for a long time, and can be avoided by the company settling discretely, and prevent any actual precedents.
Legislation should be written so that litigation wouldn't be required to uphold consumer rights.
Imagine similar concept to GDPR, but for consumer rights that must be adhered to, or be fined. You cannot sign away your rights under GDPR, and you automatically get those rights by virtue of being based in Europe.
Fantastic idea. I don't think it's reasonable to expect every individual to pay $1000 to a lawyer to review every agreement they ever sign, when they're asked to sign a 10-page document full of legalese multiple times a week for ordinary purchases.
You still would need to get a lawyer if the counterpart doesn't share your view, and lawyers are expensive in Germany. For some reason I believe that it's easier to sue in the US than in Germany, from what I get to read online, since I've never got sued or sued anyone.
These are a godsend for tenants in Germany. I frequently see these in tenant right content from tenant unions. They say which common clauses can be safely ignored if they create an unbalanced agreement between landlord and tenant.
My old boss described BGB as a masterpiece, and the deeper I dive in German bureaucracy, the more I agree.
(1) Entrepreneurs who offer goods or services to consumers or who advertise goods or services to consumers by stating prices must state the total prices. [...] (3) If a price is broken down, the total price should be highlighted.
Even with substantial differences, I believe that the principle of
<Contra proferentem: "Against the offerer"> described in section
8.4.2 of "Notes on Contract Drafting"
(https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin...) also offers a similar level of protection against unexpectedly ambiguous claims.
Also a general legal principle that the terms of a contract are interpreted in a way least favourable to the party making the offer where there is doubt as to the interpretation.
I'm aware of these laws but I've always wondered - what if a German startup really does want to operate in a new and "unexpected" way, but doesn't want to trick their customers? They put the unexpected stuff clearly on their website, not buried in the ToS. I don't see any ethical problem with that - people can make an informed choice about whether they want to do business with the company. BUT - it would still have to be in the official ToS and now that unusual stuff would be void.
Doesn't this law prevent startups from developing innovative business models even when they are being upfront about it?
Assuming it’s not an explicitly forbidden clause, from the law [0] translated by deepl:
> (1) Provisions in general terms and conditions are invalid if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith. An unreasonable disadvantage can also result from the fact that the provision is not clear and understandable.
So if the novelty of the startup is an unreasonable disadvantage to the customer, it would be illegal. Which sounds good to me.
The law does contain a bit more specific definitions but not much, it's very much open to interpretation, but that's what judges are for.
It does create uncertainty, and sometimes clauses get declared invalid years later and customers get bitten by statutes of limitations if they didn't sue themselves, but these cases are also really expensive for the companies so it's in their interest to not get too creative.
In practice, it seems to work really well. I'm always astonished how much more on edge I have to be in other countries when agreeing to anything. In Germany, most of the "legal scams" (e.g. subscriptions hidden in fine print) don't exist, or are really easy to get out of.
It can be pretty subjective, but it often gets clarified with enough common law precedent (which can be amended with a new law if it becomes abused/unfair/odd).
Good in theory, but how do you deal with slow shifts from unusual to common? eg. I bet arbitration clauses were unusual at one time before the activity became popular.
I don't think easy-to-digest summaries change anything. It should just not be possible to apply conditions as a click-through. A contract is supposed to be a meeting of the minds, and a mindless way to accept it is not that. Same goes for like car rental contracts imo. It's clear that a normal person is agreeing to the obvious stuff, but anything weird slipped in should just be unenforceable.
So I guess what I'm saying is there should be a "standard contract" based on common sense that click though providers are deemed to be entering into, and anything else slipped in is invalid.
To add to that, how is it a meeting of the minds of the contract cannot be altered by one of the parties?
If it is a EULA, a rental contract on an iPad, or an employment contract delivered through DocuSign then I can't strike or amend any clauses I disagree with.
> To add to that, how is it a meeting of the minds of the contract cannot be altered by one of the parties?
I think that's a mis-interpretation of 'meeting of minds'. The point is that when you sign the contract both parties are in agreement, but if either party is not happy with the agreement then they can either alter the terms until everyone is happy or they can simply not accept the agreement.
You could try suggesting changes to the agreement (e.g. with google when you sign up for an account), but they'll almost certainly just say they're not interested in making such an agreement. Perhaps if there was a few million dollars on the table they'd be more interested in adjusting the terms, but as it is they're offering a largely free service so most people have very little bargaining power.
I'd also things to be explicitly unenforceable in certain contracts like binding arbitration or gag clauses. If these are challenged in court the company automatically loses and has to pay a substantial fee for even having them in the contract in the first place.
> So I guess what I'm saying is there should be a "standard contract" based on common sense that click though providers are deemed to be entering into, and anything else slipped in is invalid.
This is usually the consumer (protection) law isn't it? That sets up expectations and obligations between consumers and manufacturers of such items - everything from warranty periods to allowed discrepancy and defect rates.
TOS/EULAs are there usually to modify and take away rights from consumer laws.
What if there were no terms, it's just "if you can, you may." Of course subject to laws (like fraud or vandalism) and the company's moderation efforts, of course.
Standard contracts make a lot of sense to my non-lawyer mind, almost like having the different kinds of open source licenses for software that have become recognizable.
Yes: the Uniform Commercial Code which is the standard contract that governs virtually all commercial transactions in the United States.
When you buy something at Wal-Mart, your sales contract is the UCC. When you order something online or by phone, and neither of you specify details of things like form of payment, warranties, shipping... those details are filled in by the UCC. And it's called "uniform" because all of the states have individually codified the same default contract into their state laws.
This uniform contract is also where several warranties arise that people take as a given precisely because the UCC inserts them into every sale that doesn't disclaim them: the warranties of merchantability and fitness for a purpose. Those are your guarantees that when you buy something from someone, the goods will do the thing they're supposed to do and there's nothing significantly wrong with them. It's why you have a right to a refund/return when the thing you bought is broken, or doesn't do what it says it does.
Yep, that’s how it works in Germany. There are laws that cover many cases for, i.e., lease contracts, online shopping, digital services. The terms of service just cover the specifics and cannot contain “surprising” or “unusual” things. The general idea is that a normal consumer neither have the knowledge nor the time to understand in depth legalese.
As one example, which is a quite similar case, the standard lease contract for apartments in Germany is 4 pages. In the USA I’ve had between 21 and 27 pages so far.
When I lived in Chicago, there was a standard residential apartment lease that to my understanding was written by the city. If you were leasing residential property in the city, you had to use that lease, and you could not change it.
I won't swear that this is correct, or that it still works that way, but that was my impression.
I'm also sure that a lot of people still rented apartments on handshake, unwritten, or under-the-table deals for a variety of reasons.
More like the opposite of what you asked, but a car park with a traditional pay machine didn't have much in the way of terms and conditions. Now that they have apps, suddenly there are pages and pages. But they managed before, so they should be able to manage now.
I mention this because it's sort of an example of it "having been achieved" in the past, albeit not in the lawmaking sense.
I am a landlord in France, and from what I've seen, rental contracts are essentially not worth the paper they are written on.
Either what you put in the contract is a law, so it is effective no matter if you write it or not, or it isn't and in this case, there is a high chance it is considered abusive and therefore not legally enforceable. In fact, you might as well not write anything at all! If someone lives on someone's property and pays money in exchange, there is an implicit contract with standard clauses between the two parties. I think the only additional right a written contract can give a landlord is to increase the rent, but by no more than the inflation rate.
For me it simply should be forbidden to have any contract like this between consumer and company. All relations should be regulated by law and no exception should be allowed. If you sell a product all warranty and obligations should be regulated. If you sell subscription, you should only be allowed to declare what’s included, price and duration. All else should be in common law.
I also see no sense in reading through these contracts if you’re not a lawyer. You will probably miss or interpret wrongly a sentence or two. And this might be the most critical part of the contract.
Let’s stop this madness that newsletter subscriptions and printer cartridges have a license and you should employ a lawyer to read it. This is all shady business. Let’s focus on building bridges, writing books and growing crops. This is what human being need, not million of law firms, accountants and other useless jobs.
I grew up in Norway, and now live in the UK, and one of the big shocks to the system on moving to the UK was that in Norway even most employment contracts - contracts which has a very substantial impact on peoples lives -, are often a page or less. Exceptions are very senior staff and sometimes multinationals who don't know better (half the time most of their extra verbiage is null and void due to legal restrictions in employment law). The most complex Norwegian employment contract I had was a couple of pages, mostly just spelling out terms which were covered by the law anyway.
The reason is simple: There are presumed legal defaults for almost everything, such as duration of notice periods (typically 3 months) and other terms, and except for clauses that have little impact on the employee the defaults are good enough that few companies want to go above and beyond, and trying to deviate the other way (offer less than the default; such as e.g. a 1 month notice period) is often difficult, sometimes impossible, and almost always requires consideration that makes it unattractive (before I moved from Norway I'd never once had an employment contract where someone tried to pay me less than 3 months notice, but I had one where they wanted to retain the right to pay me in lieu of notice)
The irony is that while Norway is often seen as complicated for businesses, in this respect things are easy unless you try to make it hard on yourself: You can draft a valid employment contract yourself in less than a page. A well regulated environment can reduce a lot of friction even if the regulated terms are not exactly how you'd like them to be.
But for employment the importance is at least significant enough that you can expect people to read the contract even if it's longer.
For things like subscriptions etc. there's even less reason there can't be reasonable defaults and why you can't make it hard or unattractive to deviate from those defaults, such as by requiring the contract to offer concessions in return.
Reminds of the time when I was handed a 12 page NDA to sign for a six month consulting contract. I did my best to explain, in a nice and non-confrontational manner, just how difficult it was to even begin to consider such a beast. I would have to spend a thousand dollars with an attorney to have something like that deciphered and even more to reply to it with edits, etc.
That's what TOS feel like today. Even if you did read them, you probably need an attorney to fully comprehend what you are accepting. The agreement was created by one or more attorneys, sometimes a highly paid law-firm. The asymmetry in legal knowledge between reader and author is massive.
Perhaps the metric should be that an agreement should not require an attorney for interpretation by, say, the average high school graduate.
Hey, maybe that's a way to improve our system of education! Can you imagine what an agreement would look like if that was the metric?
Why don’t lawmakers pass a law enacting two or three sets of terms of service that companies can choose from, or a set of a la carte terms. E.g. “who owns user data” could be “we do” or “the user does but licenses it to us” or “the user does”. Etc.
With home purchases (for example), the terms are usually standard in the state. Why the heck does every single web site need its own terms?
When I purchased my house, we used the standard form...with half the paragraphs crossed out and about five pages of riders attached. I guess it gives a good starting place for the negotiation, but it sure felt silly.
sorry, doesn't work... having been on the other side a number of times, different services really do need different terms.
also, residential real estate ain't the example you want to use! True, 99% of it is standard, but every freestanding home differs substantially in:
- what's included/excluded, e.g. furniture
- seller disclosures including the history of maintenance, special needs, etc.
- title search and property maps
- environmental issues (soil, etc)
- hyperlocal regulations affecting that property, incl HOA rules
(apartments are simpler but then HOA rules are more complex)
what might work is to start with a gigantic-but-standard ToS, and then the per-service ToS is just the diffs and additions. Many legal docs use this method, including residential real estate.
Have terms of service ever rigorously been tested in court? My daughter created an Uber account for me, and she agreed to the terms of service, not me. Despite having no contractual relationship with me, Uber continues to render services. I wonder what would happen if we were to get into a contractual dispute.
What if, instead of signing up for a service myself, I paid my neighbor's 11-year-old kid a few Christmas cookies to sign me up, while I washed my car? Neither I, nor any legal adult, was around when she was skipping past the legal junk, or clicking "I agree" when required.
What if I use developer tools to edit the contract before I click "Accept"? I doubt there is a single website in the world that takes whatever text is displayed and saves that for each individual account. I could print out a copy before I click accpet so that there would be a record of it, if I went to court. Is it a contract if I don't sign it, but merely click accept, and if they don't sign it either and then provide a copy with both signatures?
Why don't we have standard examples for terms of service, privacy policy, etc, in the same way we already do for licenses? I understand that more flexibility might be necessary, so maybe a ToS could be composed of standard modules, which would be much easier to digest.
There should be reasonable standard terms for widely used contracts. Unit transfer of ownership / sale, rental of the same, etc.
The standard contract should reference that current framework of agreement, and fill in only the variables that matter, possibly with an appendix of penalty fees if applicable. (E.G. like https://www.gsa.gov/travel/plan-book/per-diem-rates has a cost metric for meals and room rates for each given area; notably this list of fees MUST be from a 3rd party or government source. It must be common use.)
A list of expected payments (quantity and date), transfer events, etc, as well as a summary for anything remotely complex. It should nominally fit on one single sheet of standard paper (letter or A4).
An itemized bill of incidentals E.G. for room charges / etc would be a different type of expense, that would be an add on of additional services.
At the very least, it would be nice to have an easy-to-consume standard high-level infographic. Take the "Nutritional Information" table that's been standardized on the side of most American foodstuffs. If we could get Terms of Service with a table at the top with the most important info standardized, it would go a long way.
Had Napoleon remained alive long enough, he might have added that 'America is a nation of lawyers.' This proposal is laudable enough on its face, but imo the US legal system is unlikely to rule against the very complexity and nuance that generate so many economic rents.
I really hope they work with a technical body on this so that we avoid repeating the same horrible "what cookies do you accept/not accept/maybe accept/accept because you didn't click customize/..." nonsense we see everywhere today.
As a consumer, I would really like to see something like this bill. I would also like there to be a standard by which I can say to my browser, "I don't want to be bothered by any site who only wants to X,Y,Z" and then be prompted only when the site wants more than that. This requires cooperation between a standards body and the legislation being produced and would be an actually huge win for the cognitive load of the consumer.
>I really hope they work with a technical body on this so that we avoid repeating the same horrible "what cookies do you accept/not accept/maybe accept/accept because you didn't click customize/..." nonsense we see everywhere today.
Those shitty cookie/GDPR prompts aren't actually compliant with the law. They need to either A) give an explicit single-click opt-out, or B) opt-out by default. If the pop-up requires you to click "customize" then untick a list of ticked-things then click "accept", that violates the GDPR and the fault lies with the company who is breaking the law, not with the law itself.
Yet another reason to push for a standard mechanism that browsers might natively support rather than allow each and every website to implement their own solution.
Instead, realise that the "average person" does not have capacity to
consent to terms and conditions of technical services - even if they
were written in the simplest possible summary.
> "Virtually every modern-day service comes with a gargantuan boilerplate contract that governs everything from privacy policy and liability indemnification to which one of your children you agree to sacrifice. Since you are reading this online, you have likely hit AGREE on hundreds of these without reading a word of them..."
As someone who is writing I can understand why nobody reads them. If you actually read them you will find out company is not responsible for anything and can do whatever they want with your data, so it's kinda pointless to read them since your options to fight the company are basically non-existent besides the very basixc rights like right to erasure, data portability etc.
It doesn't matter what the intention is to begin with. None of these will ever happen. It will never be approved and even if it does, it will be extremely watered down and more or less be like what it is today. 90% of the politicians exists to not let things happen. Some times it's good but mostly it's bad.
I get the overall sentiment and agree with it. However, politicians themselves don't listen to praises or criticism for the most part. Once they are elected, they don't have to work on making things better for their constituents. It's much easier to find a boogeyman or an issue to rouse the mob than do things. That is what our politics have become. Anything good needs years of cajoling and convincing to do and unfortunately the lingering positives for the politicians who did that will be quickly overpowered by a negative sentiment/boogeyman issue. The way things are at this point, only negatives have rentention power and we stopped dealing with positives anymore.
There's little point to reading ToS unless you are an attorney with experience in contract law. If you just assume the terms are "you have no rights, and you will be spied on with impunity" you'll be right far more often than not anyway.
It's not wrong with ToSes that I have read, but I don't claim to have read them all. Defeatist? Perhaps. But if my experience shows a strong pattern, I'd be a fool to ignore that.
Didn’t someone introduce a law a few years ago to require laws to be short enough to be easily readable and/or not voted on before there is a reasonable enough time in which to allow the law to be read/reviewed?
semi-related, the case law on intent to contract in click-wrap is all over the place
if you read ericgoldman's blog, you already know this, but various factors affect whether a contract is considered formed, including:
- whether the 'agree' text appears on the user's screen
- the text of the button ('continue' vs 'agree')
- whether the tos link is before or after the button
In the end, even if companies made their deceptive/evil practices abundantly clear, I'm not sure it would stop many people. If Microsoft told people setting up Windows 11 that every ounce of profitable data will be used against them, most people would still accept it because the alternatives are less convenient.
I do read terms of services and agreements and they usually contain things I don't want to agree to but have little choice so I just hope they won't really affect me.
The current model of civil law doesn't seem like it's designed to serve the public any more. It feels like we're trying to preserve some very quaint 1700s ideas of how business is negotiated. The idea of "here's a meeting of more or less equals who are free to negotiate with minimal state interference" might have made sense in an era when the largest business entity would be an estate/plantation/farm/factory with a few dozen workers.
We have far too many contracts which are presented in scenarios with huge asymmetry of parties-- both in terms of "how much flexibility they have to negotiate and back out" and "how much legal knowledge and resources they can marshal to get a good deal." There's a subtle difference between the armies of lawyers negotiating the Microsoft-Activision deal and a bank presenting a 15-screen-long account agreement written well above the average reading level as a fait accompli, but I'm not sure I can quite put my finger on it.
There's also the matter of rework and iteration power. A typical human might open 10 or 20 bank accounts, for example, in their lifetime, but a bank will go through tens of thousands every year. This gives them both the opportunity and incentive to be constantly re-iterating and optimizing their strategy, allowing toxic terms to spread wildly from industry to industry. Remember when arbitration or anti-class-action clauses were rare and exotic?
These factors mean that well-lawyered, rich parties are usually in a position to ask for the moon. Most people won't balk, and they can start asking for Phobos, Deimos and Ganymede in the next few years. This might be a viable negotiating tactic, except that an important balancing factor is missing. We can hardly rely on the courts to help prevent abuse. A wealthy party can use the threat of a suit as a bludgeon-- "finish this disputed obligation or we'll sue; even if you win it's gonna cost you ten years and $300k to get your way", but many people can't afford to effectively use the courts to challenge toxic, socially destructive, misleading, or illegal contract terms. If there isn't big money in there, you're not going to get help on contingency. Class-action suits (when they're allowed) are a limited remedy-- they rarely end with a strong "nobody do this anymore" precedent or establishment of wrongdoing; they just serve as a "no wrongdoing was admitted" settlement, effectively liquidating your grievance in terms of dollars.
I'd love to see all permissible contracts be published in Mad Lib format in a standard government document. Nothing else is valid, no matter what story you can craft of "meeting of the minds." This would massively streamline the legal practice-- there'd rapidly be very little new under the sun to argue, so the case law could be documented and explained at a level lay people could understand.
This would also make for a huge opportunity for oversight-- if someone wants a new clause to be added to the Standard Contract Book, it has to go through a review and comment process, which could easily become a public shaming moment: Why is company XYZ trying to introduce an anti-disparagement clause in the standard employment contract? What do they want to block and hide.
While you’re at it please abolish the massive tags that seem to be attached to all clothing. I’m sure tons of legalese is clogging landfills and enriching some of our most ambitious legal scholars.
> Terms-of-service Labeling, Design, and Readability Act
I notice a lot of puns and memes make their way into act names in the US. I never imagined they'd take an ancient internet meme (tl;dr) and come up with an official sounding wording for it.
Perhaps legislators should put their own house in order first. Have they considered how an ever-growing corpus of laws and policies and guidelines and regulations places an enormous burden on corporations and ordinary citizens? "Ignorance of the law is no excuse" but it would take many lifetimes for any of us to study all laws that apply to us, much less to understand them!
If legislators wish to ease compliance, enforcement, and awareness, they will winnow down this corpus on an annual basis by removing, deleting, merging, and summarizing.
Don't bother. Just ban/declare invalid any surprising clauses, with a regularly updated list of prohibited abusive terms that people try to slip in.
Germany has an explicit rule like that (§ 305c BGB): terms that are so unusual that the counterparty didn't have to expect them are null and void, and any ambiguities are interpreted against the side using reusable T&C's. Terms are further invalid (§ 307 BGB) if they unfairly disadvantage the other party against good faith etc.
The real meat starts in 308 and following, explicitly banning many terms - for example arbitration requirements (309 item 14).
That's exactly how it should work, any legal system worth its salt should base consumer laws on consumer expectations and not any company's opinion. It's too easy for companies to produce a 300 pages document saying "you have no rights to anything, click accept" and that's why terms of services for consumer products cannot work.
Theoretically it already does in the US too. To some extent it does so even in practice. You already can't just write whatever clause you want into a contract, and "contracts of adhesion" are even more limited.
It's just that when we're talking about consumer contracts for such small quantities of money it's hard for a consumer to justify fighting anything at all. In a lot of ways this is the primary problem, not the contracts themselves. You'll never stop companies from trying to do bad things, but the way they can siphon, say, 50 cents worth of annoyance and bad practices away from 100 million people is the relatively new thing that we have no way of handling in our currently super-heavyweight legal system. We don't have anything suitable for dealing with that. Even a class-action lawsuit is hard to justify in such a case, the lawyers would eat 250% of the winnings.
I would say that this is hardly even worth worrying about, if the biggest problem someone has is 50 cents extra to a company you are living a charmed life, except that it at times feels like it's every single company I deal with doing this to me, so it adds up to something quite large. Everybody is getting shaved like this by a large number of companies. But it's hard to deal with, there's no single large locus you can focus on.
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It's same in France yeah, any term can be tossed if arguably abusive and nothing is set in stone. So ofc we can renege them for a week, they re generally fair etc.
Where I live now, Hong Kong, even oral contracts have value, if it's written you re gonna give your kidney, you better book a surgeon. We cant regret a contract even the first week (they tried to pass a bill on that, it was rejected because inconvenient for companies...).
Surprisingly though, it makes for much more careful people, who care for, and respect, contracts. In France, you dont even have to pay rent, in HK, it's a kick in the ass and your stuff thrown aways a day after the missed deadline.
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it seems hard to define what unexpected means, and that case laws to establish them would take ages, be difficult to predict for a long time, and can be avoided by the company settling discretely, and prevent any actual precedents.
Legislation should be written so that litigation wouldn't be required to uphold consumer rights.
Imagine similar concept to GDPR, but for consumer rights that must be adhered to, or be fined. You cannot sign away your rights under GDPR, and you automatically get those rights by virtue of being based in Europe.
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Fantastic idea. I don't think it's reasonable to expect every individual to pay $1000 to a lawyer to review every agreement they ever sign, when they're asked to sign a 10-page document full of legalese multiple times a week for ordinary purchases.
You still would need to get a lawyer if the counterpart doesn't share your view, and lawyers are expensive in Germany. For some reason I believe that it's easier to sue in the US than in Germany, from what I get to read online, since I've never got sued or sued anyone.
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Standard TOS contract anyone can use, and any variations need individual sign off and consent per point.
Sites would then need to decide how many variations to enact, knowing full well every extra one reduces signups.
Standard terms are a good idea. Wales just did this with (housing tenancy) occupation contracts
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This is genius, a fair and balanced option.
These are a godsend for tenants in Germany. I frequently see these in tenant right content from tenant unions. They say which common clauses can be safely ignored if they create an unbalanced agreement between landlord and tenant.
My old boss described BGB as a masterpiece, and the deeper I dive in German bureaucracy, the more I agree.
Statutory rights is exactly what’s needed, e.g:
* ban mandatory arbitration
* ban “tax recovery charges” on top of advertised prices
Banning mandatory arbitration is actually one of the explicitly listed items in Germany.
I think hidden charges are probably prohibited in a separate law, but basically if you see the price that's the price you pay.
Actually, here it is https://www.gesetze-im-internet.de/pangv_2022/BJNR492110021.... - Google Translate:
(1) Entrepreneurs who offer goods or services to consumers or who advertise goods or services to consumers by stating prices must state the total prices. [...] (3) If a price is broken down, the total price should be highlighted.
(And that "should" is a "shall")
Even with substantial differences, I believe that the principle of <Contra proferentem: "Against the offerer"> described in section 8.4.2 of "Notes on Contract Drafting" (https://toedtclassnotes.site44.com/Notes-on-Contract-Draftin...) also offers a similar level of protection against unexpectedly ambiguous claims.
UK has a similar law.
https://www.legislation.gov.uk/primary+secondary?title=Unfai...
Also a general legal principle that the terms of a contract are interpreted in a way least favourable to the party making the offer where there is doubt as to the interpretation.
I'm aware of these laws but I've always wondered - what if a German startup really does want to operate in a new and "unexpected" way, but doesn't want to trick their customers? They put the unexpected stuff clearly on their website, not buried in the ToS. I don't see any ethical problem with that - people can make an informed choice about whether they want to do business with the company. BUT - it would still have to be in the official ToS and now that unusual stuff would be void.
Doesn't this law prevent startups from developing innovative business models even when they are being upfront about it?
Assuming it’s not an explicitly forbidden clause, from the law [0] translated by deepl:
> (1) Provisions in general terms and conditions are invalid if they unreasonably disadvantage the contractual partner of the user contrary to the requirements of good faith. An unreasonable disadvantage can also result from the fact that the provision is not clear and understandable.
So if the novelty of the startup is an unreasonable disadvantage to the customer, it would be illegal. Which sounds good to me.
[0] https://www.gesetze-im-internet.de/bgb/__307.html
IANAL, but surely if it's a core part of the business and they plainly explain it on the front page, that wouldn't be considered unexpected.
How is "surprising" defined and who decides? Can this be abused sonehow?
The law does contain a bit more specific definitions but not much, it's very much open to interpretation, but that's what judges are for.
It does create uncertainty, and sometimes clauses get declared invalid years later and customers get bitten by statutes of limitations if they didn't sue themselves, but these cases are also really expensive for the companies so it's in their interest to not get too creative.
In practice, it seems to work really well. I'm always astonished how much more on edge I have to be in other countries when agreeing to anything. In Germany, most of the "legal scams" (e.g. subscriptions hidden in fine print) don't exist, or are really easy to get out of.
Usually by the Reasonable Person Test: https://en.wikipedia.org/wiki/Reasonable_person.
It can be pretty subjective, but it often gets clarified with enough common law precedent (which can be amended with a new law if it becomes abused/unfair/odd).
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Good in theory, but how do you deal with slow shifts from unusual to common? eg. I bet arbitration clauses were unusual at one time before the activity became popular.
I don't think easy-to-digest summaries change anything. It should just not be possible to apply conditions as a click-through. A contract is supposed to be a meeting of the minds, and a mindless way to accept it is not that. Same goes for like car rental contracts imo. It's clear that a normal person is agreeing to the obvious stuff, but anything weird slipped in should just be unenforceable.
So I guess what I'm saying is there should be a "standard contract" based on common sense that click though providers are deemed to be entering into, and anything else slipped in is invalid.
To add to that, how is it a meeting of the minds of the contract cannot be altered by one of the parties?
If it is a EULA, a rental contract on an iPad, or an employment contract delivered through DocuSign then I can't strike or amend any clauses I disagree with.
> To add to that, how is it a meeting of the minds of the contract cannot be altered by one of the parties?
I think that's a mis-interpretation of 'meeting of minds'. The point is that when you sign the contract both parties are in agreement, but if either party is not happy with the agreement then they can either alter the terms until everyone is happy or they can simply not accept the agreement.
You could try suggesting changes to the agreement (e.g. with google when you sign up for an account), but they'll almost certainly just say they're not interested in making such an agreement. Perhaps if there was a few million dollars on the table they'd be more interested in adjusting the terms, but as it is they're offering a largely free service so most people have very little bargaining power.
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I'd also things to be explicitly unenforceable in certain contracts like binding arbitration or gag clauses. If these are challenged in court the company automatically loses and has to pay a substantial fee for even having them in the contract in the first place.
> So I guess what I'm saying is there should be a "standard contract" based on common sense that click though providers are deemed to be entering into, and anything else slipped in is invalid.
This is usually the consumer (protection) law isn't it? That sets up expectations and obligations between consumers and manufacturers of such items - everything from warranty periods to allowed discrepancy and defect rates.
TOS/EULAs are there usually to modify and take away rights from consumer laws.
What if there were no terms, it's just "if you can, you may." Of course subject to laws (like fraud or vandalism) and the company's moderation efforts, of course.
Standard contracts make a lot of sense to my non-lawyer mind, almost like having the different kinds of open source licenses for software that have become recognizable.
Any real-world examples of this being achieved in any business domain and jurisdiction?
Yes: the Uniform Commercial Code which is the standard contract that governs virtually all commercial transactions in the United States.
When you buy something at Wal-Mart, your sales contract is the UCC. When you order something online or by phone, and neither of you specify details of things like form of payment, warranties, shipping... those details are filled in by the UCC. And it's called "uniform" because all of the states have individually codified the same default contract into their state laws.
https://www.law.cornell.edu/wex/table_ucc
This uniform contract is also where several warranties arise that people take as a given precisely because the UCC inserts them into every sale that doesn't disclaim them: the warranties of merchantability and fitness for a purpose. Those are your guarantees that when you buy something from someone, the goods will do the thing they're supposed to do and there's nothing significantly wrong with them. It's why you have a right to a refund/return when the thing you bought is broken, or doesn't do what it says it does.
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Yep, that’s how it works in Germany. There are laws that cover many cases for, i.e., lease contracts, online shopping, digital services. The terms of service just cover the specifics and cannot contain “surprising” or “unusual” things. The general idea is that a normal consumer neither have the knowledge nor the time to understand in depth legalese.
As one example, which is a quite similar case, the standard lease contract for apartments in Germany is 4 pages. In the USA I’ve had between 21 and 27 pages so far.
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When I lived in Chicago, there was a standard residential apartment lease that to my understanding was written by the city. If you were leasing residential property in the city, you had to use that lease, and you could not change it.
I won't swear that this is correct, or that it still works that way, but that was my impression.
I'm also sure that a lot of people still rented apartments on handshake, unwritten, or under-the-table deals for a variety of reasons.
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More like the opposite of what you asked, but a car park with a traditional pay machine didn't have much in the way of terms and conditions. Now that they have apps, suddenly there are pages and pages. But they managed before, so they should be able to manage now.
I mention this because it's sort of an example of it "having been achieved" in the past, albeit not in the lawmaking sense.
I am a landlord in France, and from what I've seen, rental contracts are essentially not worth the paper they are written on.
Either what you put in the contract is a law, so it is effective no matter if you write it or not, or it isn't and in this case, there is a high chance it is considered abusive and therefore not legally enforceable. In fact, you might as well not write anything at all! If someone lives on someone's property and pays money in exchange, there is an implicit contract with standard clauses between the two parties. I think the only additional right a written contract can give a landlord is to increase the rent, but by no more than the inflation rate.
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You never used to need a lease to rent an apartment. Also, purchasing is a form of implied standard contract
Medicare supplement policies. Those are rigidly standardized. Insurers hate that, because all they can do is compete on price.
For me it simply should be forbidden to have any contract like this between consumer and company. All relations should be regulated by law and no exception should be allowed. If you sell a product all warranty and obligations should be regulated. If you sell subscription, you should only be allowed to declare what’s included, price and duration. All else should be in common law.
I also see no sense in reading through these contracts if you’re not a lawyer. You will probably miss or interpret wrongly a sentence or two. And this might be the most critical part of the contract.
Let’s stop this madness that newsletter subscriptions and printer cartridges have a license and you should employ a lawyer to read it. This is all shady business. Let’s focus on building bridges, writing books and growing crops. This is what human being need, not million of law firms, accountants and other useless jobs.
I tend to agree.
I grew up in Norway, and now live in the UK, and one of the big shocks to the system on moving to the UK was that in Norway even most employment contracts - contracts which has a very substantial impact on peoples lives -, are often a page or less. Exceptions are very senior staff and sometimes multinationals who don't know better (half the time most of their extra verbiage is null and void due to legal restrictions in employment law). The most complex Norwegian employment contract I had was a couple of pages, mostly just spelling out terms which were covered by the law anyway.
The reason is simple: There are presumed legal defaults for almost everything, such as duration of notice periods (typically 3 months) and other terms, and except for clauses that have little impact on the employee the defaults are good enough that few companies want to go above and beyond, and trying to deviate the other way (offer less than the default; such as e.g. a 1 month notice period) is often difficult, sometimes impossible, and almost always requires consideration that makes it unattractive (before I moved from Norway I'd never once had an employment contract where someone tried to pay me less than 3 months notice, but I had one where they wanted to retain the right to pay me in lieu of notice)
The irony is that while Norway is often seen as complicated for businesses, in this respect things are easy unless you try to make it hard on yourself: You can draft a valid employment contract yourself in less than a page. A well regulated environment can reduce a lot of friction even if the regulated terms are not exactly how you'd like them to be.
But for employment the importance is at least significant enough that you can expect people to read the contract even if it's longer.
For things like subscriptions etc. there's even less reason there can't be reasonable defaults and why you can't make it hard or unattractive to deviate from those defaults, such as by requiring the contract to offer concessions in return.
Reminds of the time when I was handed a 12 page NDA to sign for a six month consulting contract. I did my best to explain, in a nice and non-confrontational manner, just how difficult it was to even begin to consider such a beast. I would have to spend a thousand dollars with an attorney to have something like that deciphered and even more to reply to it with edits, etc.
That's what TOS feel like today. Even if you did read them, you probably need an attorney to fully comprehend what you are accepting. The agreement was created by one or more attorneys, sometimes a highly paid law-firm. The asymmetry in legal knowledge between reader and author is massive.
Perhaps the metric should be that an agreement should not require an attorney for interpretation by, say, the average high school graduate.
Hey, maybe that's a way to improve our system of education! Can you imagine what an agreement would look like if that was the metric?
Why don’t lawmakers pass a law enacting two or three sets of terms of service that companies can choose from, or a set of a la carte terms. E.g. “who owns user data” could be “we do” or “the user does but licenses it to us” or “the user does”. Etc.
With home purchases (for example), the terms are usually standard in the state. Why the heck does every single web site need its own terms?
When I purchased my house, we used the standard form...with half the paragraphs crossed out and about five pages of riders attached. I guess it gives a good starting place for the negotiation, but it sure felt silly.
sorry, doesn't work... having been on the other side a number of times, different services really do need different terms.
also, residential real estate ain't the example you want to use! True, 99% of it is standard, but every freestanding home differs substantially in: - what's included/excluded, e.g. furniture - seller disclosures including the history of maintenance, special needs, etc. - title search and property maps - environmental issues (soil, etc) - hyperlocal regulations affecting that property, incl HOA rules (apartments are simpler but then HOA rules are more complex)
what might work is to start with a gigantic-but-standard ToS, and then the per-service ToS is just the diffs and additions. Many legal docs use this method, including residential real estate.
From the Bill Text, services must include:
> (E) Historical versions of the terms of service and change logs.
This alone is a big improvement.
https://trahan.house.gov/uploadedfiles/tldr_act.pdf
Edit: adds link
Have terms of service ever rigorously been tested in court? My daughter created an Uber account for me, and she agreed to the terms of service, not me. Despite having no contractual relationship with me, Uber continues to render services. I wonder what would happen if we were to get into a contractual dispute.
Interesting...
What if, instead of signing up for a service myself, I paid my neighbor's 11-year-old kid a few Christmas cookies to sign me up, while I washed my car? Neither I, nor any legal adult, was around when she was skipping past the legal junk, or clicking "I agree" when required.
What if I use developer tools to edit the contract before I click "Accept"? I doubt there is a single website in the world that takes whatever text is displayed and saves that for each individual account. I could print out a copy before I click accpet so that there would be a record of it, if I went to court. Is it a contract if I don't sign it, but merely click accept, and if they don't sign it either and then provide a copy with both signatures?
Why don't we have standard examples for terms of service, privacy policy, etc, in the same way we already do for licenses? I understand that more flexibility might be necessary, so maybe a ToS could be composed of standard modules, which would be much easier to digest.
There should be reasonable standard terms for widely used contracts. Unit transfer of ownership / sale, rental of the same, etc.
The standard contract should reference that current framework of agreement, and fill in only the variables that matter, possibly with an appendix of penalty fees if applicable. (E.G. like https://www.gsa.gov/travel/plan-book/per-diem-rates has a cost metric for meals and room rates for each given area; notably this list of fees MUST be from a 3rd party or government source. It must be common use.)
A list of expected payments (quantity and date), transfer events, etc, as well as a summary for anything remotely complex. It should nominally fit on one single sheet of standard paper (letter or A4).
An itemized bill of incidentals E.G. for room charges / etc would be a different type of expense, that would be an add on of additional services.
At the very least, it would be nice to have an easy-to-consume standard high-level infographic. Take the "Nutritional Information" table that's been standardized on the side of most American foodstuffs. If we could get Terms of Service with a table at the top with the most important info standardized, it would go a long way.
This is coming for IoT "cybersecurity", e.g. routers.
The European Union has this for a few years now for electronic communications service providers, and it works well!
https://digital-strategy.ec.europa.eu/en/faqs/contract-summa...
Had Napoleon remained alive long enough, he might have added that 'America is a nation of lawyers.' This proposal is laudable enough on its face, but imo the US legal system is unlikely to rule against the very complexity and nuance that generate so many economic rents.
I really hope they work with a technical body on this so that we avoid repeating the same horrible "what cookies do you accept/not accept/maybe accept/accept because you didn't click customize/..." nonsense we see everywhere today.
As a consumer, I would really like to see something like this bill. I would also like there to be a standard by which I can say to my browser, "I don't want to be bothered by any site who only wants to X,Y,Z" and then be prompted only when the site wants more than that. This requires cooperation between a standards body and the legislation being produced and would be an actually huge win for the cognitive load of the consumer.
>I really hope they work with a technical body on this so that we avoid repeating the same horrible "what cookies do you accept/not accept/maybe accept/accept because you didn't click customize/..." nonsense we see everywhere today.
Those shitty cookie/GDPR prompts aren't actually compliant with the law. They need to either A) give an explicit single-click opt-out, or B) opt-out by default. If the pop-up requires you to click "customize" then untick a list of ticked-things then click "accept", that violates the GDPR and the fault lies with the company who is breaking the law, not with the law itself.
Yet another reason to push for a standard mechanism that browsers might natively support rather than allow each and every website to implement their own solution.
Instead, realise that the "average person" does not have capacity to consent to terms and conditions of technical services - even if they were written in the simplest possible summary.
Relevant, and a good read (Nov 3 I Fought the Paypal):
https://news.ycombinator.com/item?id=33462658
> "Virtually every modern-day service comes with a gargantuan boilerplate contract that governs everything from privacy policy and liability indemnification to which one of your children you agree to sacrifice. Since you are reading this online, you have likely hit AGREE on hundreds of these without reading a word of them..."
In the meantime, there's this website that summarizes & rates ToS:
https://tosdr.org/en/frontpage
https://archive.ph/CVhku
Article is from January 2022, does not seem to have any recent updates.
As someone who is writing I can understand why nobody reads them. If you actually read them you will find out company is not responsible for anything and can do whatever they want with your data, so it's kinda pointless to read them since your options to fight the company are basically non-existent besides the very basixc rights like right to erasure, data portability etc.
It doesn't matter what the intention is to begin with. None of these will ever happen. It will never be approved and even if it does, it will be extremely watered down and more or less be like what it is today. 90% of the politicians exists to not let things happen. Some times it's good but mostly it's bad.
This cynicism is justified, but maybe if we weren't so quick to dismiss good things they'd happen more often.
I get the overall sentiment and agree with it. However, politicians themselves don't listen to praises or criticism for the most part. Once they are elected, they don't have to work on making things better for their constituents. It's much easier to find a boogeyman or an issue to rouse the mob than do things. That is what our politics have become. Anything good needs years of cajoling and convincing to do and unfortunately the lingering positives for the politicians who did that will be quickly overpowered by a negative sentiment/boogeyman issue. The way things are at this point, only negatives have rentention power and we stopped dealing with positives anymore.
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End all contracts of adhesion.
There's little point to reading ToS unless you are an attorney with experience in contract law. If you just assume the terms are "you have no rights, and you will be spied on with impunity" you'll be right far more often than not anyway.
https://oag.ca.gov/privacy/ccpa
That's great if you're in California, but even there, it only addresses privacy, not the problem with interpreting contracts.
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This is both defeatist and wrong.
It's not wrong with ToSes that I have read, but I don't claim to have read them all. Defeatist? Perhaps. But if my experience shows a strong pattern, I'd be a fool to ignore that.
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Didn’t someone introduce a law a few years ago to require laws to be short enough to be easily readable and/or not voted on before there is a reasonable enough time in which to allow the law to be read/reviewed?
semi-related, the case law on intent to contract in click-wrap is all over the place
if you read ericgoldman's blog, you already know this, but various factors affect whether a contract is considered formed, including:
and different courts have different takes.
(I'm not a lawyer)
Looks like this bill was referred to the senate commerce committee in January 2022 (https://www.congress.gov/bill/117th-congress/senate-bill/350...), and hasn't moved from there since. Doesn't seem likely to become law anytime soon.
The un readability of it was the point.
This will only have meaningful enforcement on countries which already defend their citizens from corporations.
In the end, even if companies made their deceptive/evil practices abundantly clear, I'm not sure it would stop many people. If Microsoft told people setting up Windows 11 that every ounce of profitable data will be used against them, most people would still accept it because the alternatives are less convenient.
Hopefully a gpt based summarizer of the t&c and point out to any nuanced items in there
The problem with ToS is not that they are long, it's invariably that they are nonsense.
I don't care what the terms of service are for 99.9% of the things that I do. You don't want me to download your videos? Ok, don't care.
I do read terms of services and agreements and they usually contain things I don't want to agree to but have little choice so I just hope they won't really affect me.
The solution to complex legalistic language is . . . more laws adding to the complexity?
Somehow I think this is trying to solve a symptom rather than a problem.
“We will do anything we want and we will collect all data” - every site’s tl;dr if this passes.
The current model of civil law doesn't seem like it's designed to serve the public any more. It feels like we're trying to preserve some very quaint 1700s ideas of how business is negotiated. The idea of "here's a meeting of more or less equals who are free to negotiate with minimal state interference" might have made sense in an era when the largest business entity would be an estate/plantation/farm/factory with a few dozen workers.
We have far too many contracts which are presented in scenarios with huge asymmetry of parties-- both in terms of "how much flexibility they have to negotiate and back out" and "how much legal knowledge and resources they can marshal to get a good deal." There's a subtle difference between the armies of lawyers negotiating the Microsoft-Activision deal and a bank presenting a 15-screen-long account agreement written well above the average reading level as a fait accompli, but I'm not sure I can quite put my finger on it.
There's also the matter of rework and iteration power. A typical human might open 10 or 20 bank accounts, for example, in their lifetime, but a bank will go through tens of thousands every year. This gives them both the opportunity and incentive to be constantly re-iterating and optimizing their strategy, allowing toxic terms to spread wildly from industry to industry. Remember when arbitration or anti-class-action clauses were rare and exotic?
These factors mean that well-lawyered, rich parties are usually in a position to ask for the moon. Most people won't balk, and they can start asking for Phobos, Deimos and Ganymede in the next few years. This might be a viable negotiating tactic, except that an important balancing factor is missing. We can hardly rely on the courts to help prevent abuse. A wealthy party can use the threat of a suit as a bludgeon-- "finish this disputed obligation or we'll sue; even if you win it's gonna cost you ten years and $300k to get your way", but many people can't afford to effectively use the courts to challenge toxic, socially destructive, misleading, or illegal contract terms. If there isn't big money in there, you're not going to get help on contingency. Class-action suits (when they're allowed) are a limited remedy-- they rarely end with a strong "nobody do this anymore" precedent or establishment of wrongdoing; they just serve as a "no wrongdoing was admitted" settlement, effectively liquidating your grievance in terms of dollars.
I'd love to see all permissible contracts be published in Mad Lib format in a standard government document. Nothing else is valid, no matter what story you can craft of "meeting of the minds." This would massively streamline the legal practice-- there'd rapidly be very little new under the sun to argue, so the case law could be documented and explained at a level lay people could understand.
This would also make for a huge opportunity for oversight-- if someone wants a new clause to be added to the Standard Contract Book, it has to go through a review and comment process, which could easily become a public shaming moment: Why is company XYZ trying to introduce an anti-disparagement clause in the standard employment contract? What do they want to block and hide.
While you’re at it please abolish the massive tags that seem to be attached to all clothing. I’m sure tons of legalese is clogging landfills and enriching some of our most ambitious legal scholars.
> Terms-of-service Labeling, Design, and Readability Act
I notice a lot of puns and memes make their way into act names in the US. I never imagined they'd take an ancient internet meme (tl;dr) and come up with an official sounding wording for it.
It’d be a lot easier to make lawmakers and lawyers illegal
> No one reads the terms of service. Lawmakers want to fix that with 'TLDR' bill
Also and ironically, many bills aren't read by lawmakers. Maybe they're sympathetic.
Perhaps legislators should put their own house in order first. Have they considered how an ever-growing corpus of laws and policies and guidelines and regulations places an enormous burden on corporations and ordinary citizens? "Ignorance of the law is no excuse" but it would take many lifetimes for any of us to study all laws that apply to us, much less to understand them!
If legislators wish to ease compliance, enforcement, and awareness, they will winnow down this corpus on an annual basis by removing, deleting, merging, and summarizing.
Corporations are regulation.
> No one reads the terms of service.
This is false. Some of us actually do, and I imagine most enlightened HN readers do as well.
How long does it take you to do that?