Terms of Service; Didn't Read
tosdr.org
tosdr.org
Can't say how binding that is, but usually the clause is egregious enough that I bet a judge would side with me if it ever came down to it, particularly given the unequal bargaining power and common law principle of consensus ad idem.
If you signed a mortgage agreement with a bank and then emailed them a week later saying "actually, I didn't like that clause about paying interest — I explicitly refuse that clause", how legally binding do you think that would be?
If a specific clause is legally unenforceable, it will be unenforceable whether or not you've emailed the company about it.
These are the levels that I've seen:
* Implicit Invisible ("By ordering a sandwich, you've agreed to pay for it")
* Implicit Visible ("By clicking continue you agree to our terms")
* Clickwrap Opt-out ("[x] You agree to our terms")
* Clickwrap Opt-in ("[ ] Click here to agree to our terms")
* Form ("Type your name below to agree to our terms")
* Digital Signature Service ("Sign this in Docusign/HelloSign/eSign/etc")
* Physical Signature - "You must print and upload a signed copy"
* Notarized - "You must complete this in the presence of a notary".
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Closing on a mortgage requires notarization - with multiple lower level signatures along the way.
With that being said, I can understand your argument was an example to represent the spirit of the issue. More broadly, it comes down to how significant the action is vs how well the party can prove a counterparty agreed to it.
One thing I miss about paper documents is you could cross things out before signing. I suppose I'm trying to do the digital equivalent of that. I'm all ears if you can suggest a better way to shove an amended counteroffer down their throats the same way they try to shove their ToS down mine (https://law.stackexchange.com/questions/17476/can-i-cross-ou...).
I have experience selling SaaS licenses to large organisations and there is certainly room for negotiation there, sometimes to the point where the base contract is provided by the customer. It doesn’t sound like you’re talking about even remotely comparable circumstances.
It's baked into every contract that you must have a neeting of the minds. Yet there is no pipeline for back and forth in most of these agreements.
The fact is, a system is both what it is, and what it isn't. Both are positive things.
Technology, and the EULA in particular, has turned the idea of a contract, which is the end product of a negotiation brokered between two parties, into a one-way dicta. Think about the selection bias here. If you don't accept service X because their ToS has clause Y, and everybody else has clause Y, so clause Y is essentially normalized.
90% of people that didn't give a shit are doing whatever, the businesses are off to the bank with it, enjoying their network effect, and decreased legal costs/simplified legal pipeline/accounting/bookkeeping process, and you're just SOL. Want to negate the clause? Sorry.
Either A) No standing. You didn't sign it therefore you aren't in a recognizable position to claim damages/relief
Or
B) You signed it, it's a contract, you should have known what you were getting into. (If you accept the current zeitgeist on EULA in some jurisdictions)
Guess you'll just have to make your own thing if you want it so bad... Or work through legislators/regulators, where you're still likely having to rely on some stack of EULA to even coordinate that.
For example, it notes “This service can license user content to third parties”, which can sound super scary until you read that it says “in connection with operating and providing the Service“, which is the language every service with user-generated content uses to let you know that they have to sub license anything you post to other users if they want to show it to them.
It would be useful to know what impact some verbiage has, rather that reading 50 different tooltips that make it seem like the service is a Facebook ads competitor.
The TOS indicates that Discord might advertise on other websites but does not “use your personal data to employ targeted third-party advertising“.
edit: While wanting to provide feedback about this I noticed someone else already did[1].
Not defending that it is right or not, just pointing my opinion.
Wth is a moral right?
If some service requires you to create an account, just give them false information. If they ban you, just create another account. At the end of day, the legalese is irrelevant. If it was relevant, then people would read it.
It is not like the user has any bargaining power with the platform owner to spy on them less for example, or even verify that they are upholding the privacy policy. These companies do not follow their own rules in banning you or otherwise.