back to article Sorry, but those huge walls of terms and conditions you never read are legally binding

You may never read those lengthy terms and conditions attached to every digital download or app but, in America at least, they are legally binding. Sorry. That's the conclusion of a panel of appeal judges earlier this week when shining beacon of corporate responsibility Uber insisted its users had agreed not to sue the company …

  1. sandholme

    Not installed

    So can I sue them if I've never installed the app?

    1. Anonymous Coward
      Anonymous Coward

      Re: Not installed

      And here in lies the plan. I could write movies based on the ideas. But you bring them down that way. As a bystander or other occupant of the Uber.

    2. samzeman

      Re: Not installed

      You can sue anyone (including countries and states) for anything you like. It'll probably get thrown out and be a waste of time and money if it's something dumb, though.

      1. This post has been deleted by its author

  2. Anonymous Coward
    Anonymous Coward

    There need to be limits on what you can enforce through clickwrap

    It's not rocket science, no company should be allowed to block a persons access to the courts solely on the basis that the company claims a box as clicked, and in the absence of affirmative proof of informed consent. Even the small number of EULAs that require you to scroll past the text have now way of knowing who scrolled past it or even if they can read the language of the text.

    Worse, the current interpretation seems to allow the enforcement of terms where one party(big hint: it's not the user/customer) can change the terms of the agreement at will. While some form of EULA/clickwrap is probably needed, it should only apply to basic use of the software, and should require confirmation is the terms are being changed.

    This is especially important as the people who write these things tend to claim broad rights and exemptions in cut and paste boilerplate. Remember when microsoft/oracle/google/facebook/instagram/twitter all included language saying the essentially owned all user content, or had a perpetual, transferable, unlimited, and royalty free license?

  3. Snowy Silver badge
    Mushroom

    Maybe we should all add STMT&CAOR every time we sign something.

    (Subject To My Terms And Conditions Available On Request)

    1. Pascal Monett Silver badge

      Except you're not signing something when you just click an OK button.

      1. Anonymous Coward
        Anonymous Coward

        There are actual contracts now set up with single button clicks. Go figure.

  4. Oh Homer
    Headmaster

    "in America at least"

    And in the UK, with notable caveats.

    Such as:

    • the agreement conflicts with public policy (i.e. parties performing essential services to the public are expected to fulfill their obligations to the public and cannot waive liability by using a release)
    • the releasee's conduct amounts to gross negligence (i.e. the releasee cannot waive liability for conduct that rises to the level of gross negligence)

    1. A Non e-mouse Silver badge

      Re: "in America at least"

      Also, we have unfair contracts protection. Basically, big business can't stack the deck against little consumer*.

      * In theory....

      1. Pascal Monett Silver badge

        Re: "we have unfair contracts protection"

        Well there you have it : forced arbitration is therefor not unfair, following this decision.

        Now you know what needs to be changed in the law.

    2. Novex

      Re: "in America at least"

      I was thinking along the same lines. Here in the UK (and EU) there are unfair contract terms acts (1977, 1999, etc?) that include words like 'reasonableness' in relation to terms in contracts between consumers and businesses. It basically means silly terms and terms which try to undermine existing rights basically cannot be enforced in a court of law.

      We have a term in some transactions here - "sold as seen" - where sellers try to sell products and not have the responsibility for them actually working. It works with secondhand sales between private non-business transactions, but when it comes to any business-to-consumer sales, it is actually completely meaningless except in the case of property (i.e. buildings such as houses, etc). But funnily enough most buyers think it's legal and have no redress against a business using it when the thing they bought turns out to be faulty.

      1. Martin-73 Silver badge

        Re: "in America at least"

        to be fair, if i buy something 'sold as seen' from a business, and i don't suspect that it was deliberately sold that way because it was broken... then it'd be churlish in the extreme to demand consumer rights

        1. John Brown (no body) Silver badge

          Re: "in America at least"

          "to be fair, if i buy something 'sold as seen' from a business, and i don't suspect that it was deliberately sold that way because it was broken... then it'd be churlish in the extreme to demand consumer rights"

          If you buy damaged goods, the onus is on the business to inform you of the pre-existing faults. Any further faults developing afterwards unrelated to the specified ones are covered by your consumer rights. Clothes shops come to mind. Missing buttons, mis-sewn seam etc. should be tagged when being sold as "seconds".

          I've also seen online electronic gadgets, computer parts etc being sold as returns, repairs etc with the faults listed, eg packaging damaged, manual missing etc.

        2. Anonymous Coward
          Anonymous Coward

          Re: "in America at least"

          > to be fair, if i buy something 'sold as seen' from a business ... then it'd be churlish in the extreme to demand consumer rights

          No, it'd be the correct thing to do, along with reporting them to Trading Standards. The phrase has no basis in law, and misleading consumers as to their rights regarding refunds and other rights is a breach of the Unfair Trading Regulations, and thus actionable.

      2. Anomalous Cowshed

        Ladies, Gentlement...you are all kidding yourselves!

        Why are you all so worried about the text of the T&Cs or contractual terms?

        Have you ever thought what might happen in case of a dispute with one of these multi-million or multi-billion companies?

        Have any of you ever taken a dispute to court in a bid to enforce your rights against one of these multi-corps?

        I did it, once. The case, supposedly before the "small claims court"*, concerned a blatant, brazen theft of artwork from a poor artist by a huge multinational hotel chain (whose name starts with an "H" and ends with "att", there being a "y" in between, and which shall therefore remain anonymous here for all intents and purposes).

        The hotel chain hired a huge, dodgy UK law firm to fight us (the artist and me, her representative, not a lawyer). Their entire approach consisted of legal trickery and provocative insults, the case being clear-cut.

        At the hearing, the judge turned to the artist and said: "you know you could lose your home if you go to court and you lose the case?"

        She then dismissed our claim, but mercifully didn't allow costs, basically telling the other side "I know you're lying and being dishonest".

        Given that she was closely related to me, and the loss of her family's home or any part thereof would have been a disaster, I was RELIEVED to lose the case and get off so lightly.

        Good bye, courts! As one honourable commentard pointed out above, the legal system is for the poor or the rich & powerful. Anybody else NEEDN'T APPLY.

        * It turns out there's no such thing as a Small Claims Court in the UK; it's just branding for "crown court case involving a small claim", especially if your opponent decides to hire lawyers.

        1. Anonymous Coward
          Anonymous Coward

          Re: Ladies, Gentlement...you are all kidding yourselves!

          > Have any of you ever taken a dispute to court in a bid to enforce your rights against one of these multi-corps?

          Not against mega-corps, but national ones, yes, and without issue.

          > I did it, once. The case, supposedly before the "small claims court"* ... At the hearing, the judge turned to the artist and said: "you know you could lose your home if you go to court and you lose the case?"

          It sounds like your case got escalated out of Small Claims, which are part of the County Court system, and are heard at a Magistrates' Court. Costs, beyond hearing (court) fees aren't awarded, except at the presiding judge's discretion where one party has acted vexatiously..

        2. Anonymous Coward
          Anonymous Coward

          Re: Ladies, Gentlement...you are all kidding yourselves!

          "Have any of you ever taken a dispute to court in a bid to enforce your rights against one of these multi-corps?"

          Yes, took Orange to (small claims court*) and won. Wasn't hard and the good thing is, they can send a £1million a hour lawyer, makes bugger all difference.

          *yes, I know.

        3. Missing Semicolon Silver badge
          Unhappy

          Re: Ladies, Gentlement...you are all kidding yourselves!

          ... just.... wow.

  5. Anonymous Coward
    Anonymous Coward

    You also missed the exclusion:

    the releasor is not aware of the release and cannot reasonably be expected to be aware of it (i.e. the waiver clause in the document appears in such a way that it is unlikely to be read by the releasor)

    Which is rather pertinent in this context, wouldn't you say?

    1. Remy Redert

      Don't know the rules in the UK, but here EULAs more or less go into the bin entirely if they are presented 'as is' or after payment, because the courts consider a EULA a contract and both negotiation and having the terms and conditions prior to purchase are required for a contract to be enforceable.

      The former is a smaller issue than the latter, but can still easily result in a court throwing unreasonable parts of a EULA right out the window. And then there's the issue of not being to sign away rights so while the contract may call for arbitration, they can't prevent you from going to court anyways if you don't agree with the results thereof or if the process takes an unreasonable amount of time.

      1. Charles 9

        Or if the terms and conditions cross the line and violate a standing Act. No contract can overrule actual law no matter what it says. If a contract carries an illegal term, it can be taken directly to court on that ground alone (unenforceable contract) because matters of law can ONLY be handled by the courts; that is their purpose for existing.

  6. cirby

    Alternately

    "Your Honor, I'm not certain this is the same Terms and Conditions I saw on their website. The one I saw didn't have an arbitration clause, for example. I'd like to see the signed and notarized copy, please."

    "All we have is the electronic version!"

    "Well you seem to have AN electronic version, but unless you have some sort of physical proof that it was the one I agreed to, then I don't see how it can be valid."

    1. Adam 52 Silver badge

      Re: Alternately

      Civil court. Proof only needs to be more likely than not. And a git changelog for the website showing no changes were made means you're going to lose that argument.

      1. Charles 9

        Re: Alternately

        "Civil court. Proof only needs to be more likely than not. And a git changelog for the website showing no changes were made means you're going to lose that argument."

        Correct, in civil court, the standard is simply "Preponderance of Evidence" to determine which side is more convincing since the litigants are considered to be peers (in the sense both stand as equals) so have equal standing in the court.

        BUT if the complaint is about violation of a CRIMINAL act and the People (specific term varies by jurisdiction) agree there's a case, then it goes into the Criminal Court system where guilt can be established and the "Reasonable Doubt" test applies.

      2. Jason Bloomberg Silver badge

        Re: Alternately

        Civil court. Proof only needs to be more likely than not.

        In the UK, most civil court cases come before a Judge, and in my experience the Judge is inclined to treat businesses claiming things are how they are and in their favour, without being able to clearly prove it, with the disbelief they deserve.

        The notion that courts favour businesses over individuals is not as true as some believe it is. Courts will usually bend over backwards to be as accommodating and sympathetic to individuals before them. Most Judges are human and know exactly how it is in the real world as anyone does.

    2. Lusty

      Re: Alternately

      "Well you seem to have AN electronic version, but unless you have some sort of physical proof that it was the one I agreed to, then I don't see how it can be valid."

      You clicked on a certain date. They have the code for the page on that given day in their backup and archival system. Not hard to prove what you saw electronically at all. The web server would even be able to show what files you were served and when.

    3. Anonymous Coward
      Trollface

      Re: Alternately

      Or "Your Honour, now you passed obligatory Arbitration, you do realise you agreed to my business terms and conditions earlier when you walked passed me in the hall? You now must pass all cases in my favour, or go to the Arbitration of my choosing, as agreed in these T&Cs" (Wave a contract stating "by walking pass this piece of paper, you agree to:")

      Although that is likely to be a logical paradox if the Judge must both be bound by the T&C arbitration enforcement and then bound by your T&Cs to remove all T&Cs. :D

  7. Alan Thompson

    Not in the U.S., only in the applicable district.

    Until/if the case goes to the Supreme Court, that ruling is only law in the district of the court.

    1. Charles 9

      Re: Not in the U.S., only in the applicable district.

      If the case gets appealed, the appellate ruling would apply throughout that court's jurisdiction (there are 12 of them in the US IINM) unless they return the case back to the original court for re-ruling.

  8. Jason Bloomberg Silver badge

    Spencer Meyer is lucky

    Had Uber included similar clauses as Purple he may well have found himself ordered by the court to spend a 1,000 hours of his times picking up dog turds.

    As it is he only picked a fight with one.

  9. Anonymous Coward
    Anonymous Coward

    I don't have a life...*

    I read every one of these as well as the papers included in a product box and every time I get notice of an agreement change. It's become a bit fun in that it's novel to identify the paragraphs and terms not included. Almost a box ticking exercise as y'all call it. Where I want to go next, if I should turn up more time to waste, is being able to read the other languages in these things to identify differences between the sets. Microsoft almost always includes, for instance, French. Chinese FTW!

    * One of my OCD conditions is compulsive reading. I really have to fight not to read everything about me, including every open document visible, even if sideways or upside down. Thankfully, I'm honest and have an aversion to knowing other's situations, medical or otherwise, passwords,....

    1. DryBones

      Re: I don't have a life...*

      Briefly tried to find a website with unending random text generation as you scrolled, failed. Still, this should be Eye of Argon hilarious.

      http://randomtextgenerator.com/

  10. Zog_but_not_the_first
    Boffin

    Proof of click?

    But who clicked to accept the T&C? Me? Someone else in the house? A cat walking across the keyboard?

    1. Lusty

      Re: Proof of click?

      On your own mobile device? You did. It's your responsibility to control access to your device and it's reasonable to assume you do that from a legal point of view. There are many ways to control access including passwords, PINs, fingerprints etc. not to mention the fact that you'd need to have accessed the app store with your personal account to get to this stage...

      1. Dan 55 Silver badge

        Re: Proof of click?

        If we ever get to the stage that something's legally binding because some human or mammal tapped an area of a touchscreen then we might as well go back to surfdom.

        You may keep the app store and certain settings locked on a phone or tablet, but it doesn't mean you have to lock the devices themselves. If you have an unlocked tablet for the whole family, users may be able to download the same apps you have on your phone on your tablet without being asked for the password.

        In all probability the app developer doesn't have your name, address, or signature. There's no way to keep a copy of what you agreed to. If you don't speak English it might not even be in your own damn language. They probably have one EULA which apparently is good for the whole of the world in spite of all the different country's legal systems. It might even say you need to go to California or you promise to give up statutory rights.

        In other words, they're trying it on and if a court makes a ruling that the EULA is legally binding then they're wrong.

      2. Tim Seventh

        Re: Proof of click?

        @ Lusty

        Two words, Windows 10.

        Also as a fact, none of the above control access stops it from auto installing.

    2. Flocke Kroes Silver badge

      Re: Proof of click?

      I clicked "cancel" once and the software installed anyway. To avoid possible arguments in future, I kill the install process.

  11. Anonymous Coward
    Anonymous Coward

    " A district court in New York found that Uber's terms of service were difficult to access [...]"

    "It was on display in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard."

    https://www.goodreads.com/quotes/40705-but-the-plans-were-on-display-on-display-i-eventually

    1. Mystic Megabyte
      FAIL

      @AC

      Yup that's exactly why I dumped BT. On every "special offer" they sent me was a pile of small print ending with "Other terms and conditions apply, see www.bt.com". How am I supposed to know where they have hidden it? Also I'm allergic to leopards.

      1. Martin-73 Silver badge

        Re: @AC

        simply visit www.bt.com Print a copy of the webpage (it's a URL.... it doesn't mean some document stored in another file... it means the default index page for www.bt.com ONLY... if there are no additional Ts and Cs on there, you're golden

  12. Cameron Colley

    Another question is why does anyone use Uber?

    OK, I get it, it's convenient but surely anyone who has read anything at all about Uber knows they're toxic scum and would not want to pay them a penny?

    Or is this another case of "Oh, no, that's really bad! Still, I'm too lazy so I'll help pay the scum anyhow."? Or, to put it another way, the real story here is that millions of people think their convenience is more important than the rights of others.

    1. Anonymous Coward
      Anonymous Coward

      Re: Another question is why does anyone use Uber?

      No, that is the fashionable bandwagon the media are riding right now. Any Uber story is advertising click revenue.

      I find them a pretty reasonable company to do business with, and it seems the drivers are pretty happy with the recent changes to the terms. (This got virtually no coverage as it was a positive Uber story -go figure)... Pretty much every Uber story is a tale of slave labour, none of them talk about the freedom to take on ride based on where you were already going to as part of your normal day to day life, as again, obviously that sort of stuff doesn't fit the Uber hate agenda that is insitgated by taxi drivers and profited from by the media.

    2. mstreet

      Re: Another question is why does anyone use Uber?

      "...millions of people think their convenience is more important than the rights of others."

      That's really it in a nutshell. It's also the same reason idiots get elected to lead nations, and why people continue to shop for products, they know have been created by slave labor.

      The majority will always take the easy or cheap way out, and always compromise common decency and common sense for simplicity.

      Maybe that makes me sound like Rorschach from the Watchmen, but thats what the world's taught me over the last 40 years.

      That's why I don't believe in government or corporate conspiracy theories anymore. Ultimately, allowing this sort of thing to happen in our society, is on us as individuals, and is the result of a million little compromises rather than some great act of evil from on high.

    3. Anonymous Coward
      Anonymous Coward

      Re: Another question is why does anyone use Uber?

      In a lot of places (e.g. most of Australia) the only alternative to uber is a taxi. Not only is that more expensive with worse service, the taxi industry is generally even worse than uber. Neither option is good, but uber is often a reasonable choice.

      1. Anonymous Coward
        Anonymous Coward

        Re: Another question is why does anyone use Uber?

        In a lot of places (e.g. most of Australia) the only alternative to uber is a taxi. Not only is that more expensive with worse service ...

        I second that. I've repeatedly had bad experience with the regular taxis in AU - once being taken to a place nearly a mile off my requested destination, in a city I was none too familiar with. All Uber rides I took in AU (somehow, this is the only place I end up using Uber, even though I don't live there) were pleasant, punctual, and usually priced below all other practical options.

      2. Charles 9

        Re: Another question is why does anyone use Uber?

        I guess it does down to a case of "Your Mileage May Vary". If your destination is pretty easy to spot, out in the open on well-established streets that haven't been changed recently, then outside mapping data should be current enough that services like Uber can handle it.

        HOWEVER, if the destination is off the beaten path, not that obvious, or in a location that changed its layout recently, then your only option is something with local knowledge, and that means the taxi service.

  13. Snorlax Silver badge

    "You may never read those lengthy terms and conditions attached to every digital download or app but, in America at least, they are legally binding. Sorry."

    Luckily for the rest of us, EU directive 93/13 and legislation like the Unfair Contract Terms Act 1977 or the Consumer Rights Act 2015 in the UK offer consumers some protection.

    1. Craig 2

      "Luckily for the rest of us, EU directive 93/13 and legislation like the Unfair Contract Terms Act 1977 or the Consumer Rights Act 2015 in the UK offer consumers some protection."

      Either of these been tested in court recently? Genuine question

      1. Snorlax Silver badge

        @Craig 2:"Either of these been tested in court recently? Genuine question"

        Most consumer-level disputes would be heard in small claims/county court.

        So in answer to your question - yeah, in making claims, people would rely on consumer rights law and contract law every day of the week.

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