Terms of Service; Didn't Read
tosdr.org
tosdr.org
Terms of Service tries to be legally document, enforceable across borders. Its not related to copyright, so there aren't any treaties to unify each countries laws. Also, because it is not copyright, ToS get put into the all covering service/contract law. Where I live, Sweden, those laws was written in 1900, and is in my view 100% incompatible with ToS or EULA's.
To take one example, they require that the person providing a contract makes sure that the other party is fully informed of the contract, and that the other party is benefited from signing the contract in relation to the terms. Reading the history around it, they basically makes in unlawful to knowingly "trick" people to sign contracts that are one-sided.[1]
On the "trick people to sign" part, I am also slightly considering the fact that companies often know how long time someone spends reading an ToS/EULA. They know when, and how many people can't have human possible read the agreement before pressing OK. When MMORPG clients update a new agreement, people are logging in seconds after its possible. If you knowingly are going into a contract with someone who hasn't read and understood the terms, its hard to claim that the contract was made in good-faith (jfr BrB 9 kap 1 §).
All in all, ToS and EULA's just seems to me as an broken concept.
https://lagen.nu/1915:218 30§ and 36§
In Common Law jurisdictions, "I read and agree with ToS" is prima facie (on its surface) binding on the user. You cannot get away from a contract by simply not reading it - many people would repudiate their contracts if this was the case. I do not believe there is such a law in Common Law about "tricking people" to sign contracts. Whether a term is lawful depends on the circumstances of the case - this is why law is complex and must be cases must be litigated in order to determine lawfulness.
Many contracts we sign are one-sided. This is due to the respected bargaining power of the parties. The courts and the legislature have to balance between interfering with the freedom of contract and the notion of fairness. Some terms must be one-sided by nature- eg: banks can unilaterally change the interest rate on your property.
>You cannot get away from a contract by simply not reading it
Well, in Swedish law, quite a lot weight is given to the circumstances around the contract, and if it was made in good faith. Take people who sends out false bills, relying on people who do not read the letter fully and see that it actually was not a bill but an "offer of service". That is still fraud, and people who pay those bills without reading it can still get away from the "contract". This might be different in UK, Germany, any of the state laws in US and so on. Maybe some of the 27,000 pages of federal law has something about it, but I am not a US lawyer. The laws are so old that what exactly can nullify a contract in one country will likely be different from an other.
> The courts and the legislature have to balance between interfering with the freedom of contract and the notion of fairness.
This is an area where laws are likely to be very different between countries. It touches on consumer protection, as well as contract law. The Swedish law is very unspecific here, and just generically defines that unjust terms are grounds enough to nullify a contract either in parts or in full. The consumer protection laws goes a bit further, and declares that the party offering a service must make sure that the consumer is fully informed about the terms, and must also make sure that the consumer is benefited from agreeing to the contracts and all its terms. If not, then the consumer has a right to nullify the contract and get back any money already paid. For the bank example, this mean that the bank must make sure the consumer is aware of the costs involved before signing, and the the rates are within reasonable levels. If they tried to get someone to agree to a 1000% interest loan, the contract would be almost guaranteed to be nullified in court if challenged.
Interestingly, consumer protection aspect you talk about is very similar. Stronger protection is given to consumers through legislation - eg: Sales of Goods Act in UK. The word "reasonable" is ingrained into common law and a 1000% interest loan would certainly not be reasonable.
>You cannot get away from a contract by simply not reading it All circumstances around the contract would be considered in common law. I believe the courts would rather void the term on the basis of unfairness rather than putting weight on the fact that the person did not read it.
Contract is binding even if you have not read the contract is a very important cornerstone of contract law. Almost everyone that signs the contract does not read the contract - even contract that exceeds billions of dollars. They turn to their lawyers to read and negotiate the terms. Complex and specific terms are required to specify the rights and obligation of each side. If we are forced to read the contract before we sign them, our society would not be able to operate and many disputes would arise over overly broad terms that can be interpreted in many different ways.
Some payday loans calculated APR is in the high hundreds of percentages (like 600%+). Lenders are often required by law to report the APR even though the terms of the loan may only be for a few weeks worth of time, causing the inflated APR.
Payday loans, however, are generally held to be enforceable contracts.
This is one reason, I think, why contract signings are witnessed. In a dispute the witness can testify that you did in fact read, appear to understand, and willingly sign. And this is why online TOS are difficult to enforce: no way to prove that you even saw the contract or intended to click the "agree" button.
"banks can unilaterally change the interest rate on your property"
Say what? If I sign a 30 year note for 3% interest it's 3% for 30 years, and the bank is stuck with that.
Yes. if a bank would sign a contract with you then it is valid. I highly doubt that would be the case, the bank needs to borrows the money from someone else. They just merely make the difference in the interest rates. Taking a fixed interest rate would mean that they risk losing money if the money the borrow from somewhere else exceeds 3% in the next 30 years.
>why contract signings are witnessed. In a dispute the witness can testify that you did in fact read, appear to understand, and willingly sign. And this is why online TOS are difficult to enforce
This is not a problem at all. In Common Law jurisdictions (US, UK), contracts do NOT have to be witnessed (with some exceptions like Wills). Contracts that is signed without any witness are perfectly valid. This would apply to your ToS, if it states the laws of US, UK would apply to this contract. All contracts would state the jurisdiction that applies and all (respectable) courts would honor that term.
I still don't understand - I think you might be confused about how mortgages work. Every loan is a contract. There is no such thing as the bank just giving you some money and then deciding on the interest rate later. Adjustable rate loans adjust according to a formula in the contract. Fixed rate loans are fixed, and the bank enters into the contract because they estimate that they will make a profit. If they don't, they are still stuck with it. It's a contract, they can't change it.
"contracts do NOT have to be witnessed"
I know; I never said they did. I just said that witnessing can help establish the validity of a contract if a dispute arises, and that TOS click-throughs lack this. I'm pretty sure that any serious contract, involving a lot of money, is witnessed. All of the house loans I've ever signed for have been witnessed, and I had to prove my identity as well.
Laws may put more requirements than pressing a button. The normal standard in Sweden is to make a written paper and then let both sides sign that. Scrolling past a lot of text and then pressing OK does not pass that hurdle.
It is possible to do electronical contracts, but that would involve some sort of digital signatures.
There are many kinds of contracts, not all of them have the same form requirements.
I am sure you haven't read most of the contracts you are bound to, yet, you are bound to them.
That would be an incorrect understanding of the law or at least common law. When you go out to purchase a drink from Starbucks, you have formed a contract with them. Signing is not essential to forming a contract.
That will drastically cut down on the boilerplate. Want to straitjacket your users with 60 pages of user agreement? No problem! You're only 60 button clicks away from complete lack of liability.
edit: really, this is the exact same problem as "some people have taller screens than others", but some people have taller browser windows than others too. If I want to get some text off screen before clicking "I agree", it's fully within my power to do so.
The point is that when we allow arbitrarily complex language to be buried under a single agreement action, a user has no idea what they are actually agreeing to. And everybody knows it. So we should just make such agreements null and void until the technology community (us) and the lawyers can come up with a way of breaking these user agreements down into digestible, understandable units.
While I would not agree that users should be held liable by terms as either criminal or civil infractions of any sort, they certainly work well to advise the user of what services they will be provided, under what circumstances the provider will be justified in removing service, whether or not the customer will be refunded in those situations, etc.
As a declaration of intent of service, potentially usable defensively by the company should a user take umbrage against the service, they are excellent. As anything else, they're pretty worthless.
Which unfortunately destroys the Internet until that happens. Businesses typically don't enjoy the benefit of the doubt and consumer protection laws that their customers usually do when those customers sign up with a standard form contract where they have little if any power to negotiate. If a business offering a product or service isn't able to define reasonable terms to clarify what the deal is then that business can't transact with customers without accepting an absurd amount of risk or without negotiating individually with each customer at prohibitive cost.
When we did the terms for a UK business not so long ago, we were advised that things like hiding potentially unexpected terms away could weaken those terms if we ever tried to enforce them, while if certain terms that are reasonable but not necessarily obvious are emphasized then this can strengthen their enforceability. Also, there are some basic legal standards that any such contract would have to meet, e.g., where consumer protection laws say that certain kinds of term are completely prohibited.
This seems a reasonable fundamental policy: whoever is writing the terms can't rely on unreasonable conditions, and if there's something reasonable but possibly unexpected then it's in their interests to draw attention to it explicitly, but assuming they do those things their terms should be expected to stand up in court if necessary.
There is - both in theory and in practice. Otherwise you'd get text drawn over other elements instead of scrollbars when you write too much text inside the edit box.
Sorry if that's not what you were asking, and note there are lots of different ways to do this, that's just one example.
That said, one can scroll rather quickly.
I think if the technical details with screen-size and tracking what was indeed visible at the time of acceptance are worked out, that this is a great idea and really would use market forces to naturally shorten TOSs. It has a very Libertarian Paternalism idea about it in that it's not limiting freedom but gives them a Nudge[1] in the more universally beneficial direction.
As a user who just wants to click accept and GTFO, this would initially be a burdon as all existing TOSs are aligned with this requirement. I don't want to accept 60 pages just to install WinRar (the trial of course, because I'm still not sold on it's benefits).
But as someone concerned with what I'm actually agreeing to, and someone who doesn't have the time to read the TOS for everything I come across, I'm fully behind that and would like to have some words with the lazier side of me about the importance of agreements.
As an aside, maybe there could be an article of the law that allows for a legally binding summary of terms which they could use to supplement the full terms. In that case, the user would be bound to the terms of the summary--in reference to the full terms--which were visible on the screen when they accepted. They would still be required to accept the full terms (likely with the same TL;RD scroll and accept).
I'm thinking that there's somewhat of a precedent to such summaries: ballots. When you vote on on a resolution at the ballot, you're reading a summary. But that summary has to be legally accurate to the content of the bill.
[1]http://www.amazon.com/Nudge-Improving-Decisions-Health-Happi...
I could see the EU implementing it as part of its ongoing privacy/transparency efforts, but I doubt the US Congress would be of any help.
It's not lost on the legal world that no one reads Terms of Service. As a result, TOS are rarely enforceable in court, except inasmuch as they comply with broad industry standards.
However, compliance requirements are much MORE strict for parties who demonstrably should be aware of their legal obligations. Lawyers, for example, can't really argue that they didn't read a legal document they executed because of the manner in which it was delivered (in an inscrutable TOS doc, at the entrance to an amusement park, etc).
If you install this extension, you might actually be making yourself MORE bound to crappy terms of service, since you will not be able to make the case that obviously you didn't read them terms and therefore should not be held to some non-standard provision.
The reviews/ratings provided by tosdr.org are awesome, and I hope you guys continue this project, but I, for one, will be covering my ass and not installing this extension.
Raising people’s awareness of bad terms and then getting services to actually use proper terms is the actual goal.
I estimate the likelihood of me ending up in court over a TOS violation extremely low. In the history of the Web, how many times has a consumer been the recipient of a lawsuit over a TOS violation?
However, the likelihood is very high that I will encounter TOS provisions on the Web that are objectionable to me. I would like to know what these provisions are, even if I am forced to click accept because I want to use the service anyway.
I am not a fan of maintaining ignorance for the sake of plausible deniability.
And if you want to contribute, come join us! http://tosdr.org/contribute.html
We are a completely non-profit and open-source project. Source at http://github.com/tosdr and API at http://tosdr.org/api.html
Please note though that nothing in the page is legal advice. We just want to help people know a bit better what Terms of Service say.
You need to put in the version / date of these ToS, otherwise it would be hard to update. I would also keep an archive of all the ToS on your servers since volunteers would like to use track changes as a new version is published rather than re-reading the ToS. It would be also interesting to see how the terms have changed through the years.
A great feature would be to categorize these services by category. Eg: for search engine: Bing, Google, DuckDuckGo. You could add a more comprehensive chart on the terms and how it compares across these services. Eg: Tracking: Google keeps ur data. DuckDuckGo does not track user data.
I also suggest that I can click into the brief description which will bring us to the exact term in question and highlight any other relevant terms. This may increase the chances of people reading the ToS and also increase participation. If I was reading a term on your site and I was referred to the actual term and realized that ToS;DR is incorrect, i would likely to correct it.
I think one issue with a service like this, is that your rating of TOS provisions might not match with my own. Which is why it's great that you link your rankings to discussions of provisions and their rating.
Also, HTTPS Everywhere http://eff.org/https-everywhere
Generally, we got the most comments on companies that were unliked (Apple, Microsoft), and the reviews became another way to express disgust at a company.
Another thing to consider is the ever-changing terms in an EULA. Your site does not have a version concept, meaning you could be reading reviews on wording that does not exist in the existing EULA.
Btw. IBM cloud computing agreement was so ridiculously long, that I can signup and setup everything up and running with Linode or UpCloud before I have even finished reading their agreement.
Would be interested in Mobile apps like: Instagram, Vine and Path.
I don't know the degree to which this really fixes the CLICK ON ANY BUTTON IT TAKES TO GET ME INTO FACEBOOK approach of most users, but it's an interesting thought experiment at least.
But there are no specific terms around the service we provide to you. The only thing is a disclaimer: "this is not legal advice" this is just our opinions.
It's like reading an article or a book. You don't need to accept ToS to do that ;-)
One other example would be to use Free Software. If you download and use, e.g. GNU/Linux, you are not accepting any ToS. (For instance, only modification and distribution of copies is regulated by the GNU GPL. Merely using the program is not).
If nothing else, it's a usability issue. I assume that tosdr.org has a good ToS, so if I want to see what an A-rated ToS looks like (according to your ratings) I should navigate to your page and your browser extension should tell me.
The "About" button just says it's a project intended to fix something. It gives some WHO and WHEN info, but it doesn't say HOW it will fix it or WHAT it does.
Instead it asks me to take a large step of trust by installing executable code into my browser.
Terms of service are often too long to read, but it's important to understand what's in them. Your rights online depend on them. We hope that the ratings below can help you with that.«
Have you read the page where you get the extension? http://tosdr.org/downloads.html : you can get the source code on http://github.com/tosdr
That's why we think it's important for an independent non-profit to review all these services. And that's also why we chose the simple green-red main scale with a bulleted list, including details on how we arrived at that rating.
I deliberately worded it on my website as "By clicking the register button you are accepting the terms of service", under the assumption that the vast majority of people would assume it's normal and sane (whatever that means) and not read it, and therefore create an account honestly.
If this is supposed to be helpful, is there a reason why they still don't have classes for popular services yet?
Things I'd like to see: 1. Highlight sites that have changed terms recently. 2. The discussion links should show how active the discussion pages are
As for point 2: We always welcome contributors! Either submit a feature in the tracker or dig into the code yourself: http://github.com/tosdr
looks like they got a new domain
» Rating the websites and making these ratings easily available is only the first step. Raising people’s awareness of bad terms and then getting services to actually use proper terms is the actual goal.«
(Original comment: https://news.ycombinator.com/item?id=5889189 )
We are a fully non-profit and open project, if you still have doubts you can read the code to the extensions and install them manually via https://github.com/tosdr/tosdr-firefox (for Firefox) or https://github.com/tosdr/tosdr-chrome (for Chrome), and the other browser extensions are also there on Github.
"Be civil."