I was at a breakfast meeting once, when a solicitor said “I don’t know about you, but I’ve never read any of those long tick box terms and conditions, Have you?
Well… sadly I sometimes do. But I think his approach is better. I think that 90% of all online Terms and Conditions contracts may be invalid in court. Let’s take Adobe’s flash player for example… I just had to install it to load a web page using a new Firefox browser. 4,800 words, which take 10 pages when cut and pasted into word. Including the phrase:
“Use of some third party materials included in the Software may be subject to other terms and conditions typically found in a separate license agreement, a “Read Me” file located near such materials or in the “Third Party Software Notices and/or Additional Terms and Conditions” found at www.adobe.com/go/thirdparty.”
Here are links to third party terms and conditions for every Adobe product. If you are smart enough to know what you are loading, you might find the third party terms for Flash Player 9.0… another 3,180 words from many other corporations, from W3c to apple. One is “Eric Young’s Open SSL Implementation” Which is typical of the others and includes the term:
“The license and distribution terms for any publicly available version or derivative of this code cannot be changed. i.e. this code cannot simply be copied and put under another distribution license [including the GNU Public License.]”
So… Does this mean Adobe has broken other licenses to use other code in its own products? Well… I don’t honestly know, but the solicitor at breakfast was right… being expected to read over 7,000 words on a collection of URLS is not practical. I am just trying to read a web page and I cannot do so without ticking that box. It is COERCION. It is undue influence. It is a contract made under duress. So let’s see what various people say about whether that counts as a contract.
The “Legal Practitioner” (Mike Semple Piggot) says of “Duress and Undue Influence”
At common law if a party enters into a contract under duress the contract may be set aside on ground of duress unless it has been affirmed expressly or impliedly after the duress has been withdrawn.
Wikipedia says a cause of Economic Duress includes:
2. Lack of reasonable alternative (but to accept the other party’s terms). If there is an available legal remedy, an available market substitute (in the form of funds, goods, or services), or any other sources of funds this element is not met.
Since I cannot negotiate these terms (or even read them well in that little box), so I conclude there IS no reasonable alternative but to accept the other party’s terms.
Some companies take the time to highlight the main conditions of the terms in a simple summary, in non-legal speak… but I still find myself with a lack of realistic alternatives.