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. Anonymous Coward
    Anonymous Coward

    This, chums, is why forced arbitration should be illegal.

    And EULAs need to be dumbed down to a 5th grade reading level.

    Of course none of this will come to pass under The Donald's administration.

    1. maxregister

      yeah OK, but it wouldn't have happened under Hillary's administration, or a 3rd Obama term if that had been possible. Nobody cares about you.

      1. Wade Burchette

        "but it wouldn't have happened under Hillary's administration, or a 3rd Obama term if that had been possible. Nobody cares about you."

        Which is, sadly, exactly right. A politician's two jobs are to get elected or re-elected. Our needs are a distant third. Hillary Clinton spent $1,200,000,000 in the presidential campaign. Where did that money come from? I can promise you people they didn't give the money to her because they liked her. Quite frankly, Donald Trump and Hillary Clinton are two of the most unlikable people. The people who gave her all that money want political favors. Nobody cares about you because you don't have enough money to make the politicians notice.

        I just ride it through. Every administration does some things I like and many more things I hate. If they had the answer to our problems they wouldn't be politicians.

    2. DryBones

      The judge seems to have gone through his thought process wrongly.

      1) How long is this contract, if printed out? 50 pages at 12pt font.

      2) How long will this take to read? Several hours.

      3) Is it possible for the average layperson to encompass and understand? No, not without a solicitor, perhaps not even then.

      4) Is it reasonable to expect the average layperson to spend several boring hours of their time and spend the money to retain and employ a solicitor every time a company's terms and conditions change? No.

      What we need is a site, or clearinghouse or something where we can subscribe, maybe pay 5 or 10 or whatever a month, to go and get a plain language, single page bulleted summary of these things, because no company seems to want to spend the time to do that. And there are so many of them out there that we'd spend most of our time driving ourselves to suicide reading and trying to understand them.

      Or, you know, one could make the common sense ruling that "If it isn't something that a reasonable layperson can be expected to read and understand, it is not legally enforceable." Have your longass contract if you want, but include the Cliff Notes: Legalese version.

      1. Anonymous Coward
        Anonymous Coward

        > 4) Is it reasonable to expect the average layperson to spend several boring hours of their time and spend the money to retain and employ a solicitor every time a company's terms and conditions change? No.

        5) Even after all that, there isn't really any choice the consumer has, apart from to decide not to do business with the company.

        That is: you're stuck somewhere and you want a ride home. You can either take the Uber ride, and agree to all their conditions, or stay stranded.

        Even if there are alternative options: anything that Uber can get away with, they will do the same.

        1. Martin-73 Silver badge

          Or simply use a real taxi?

      2. the hatter

        I don't look forward to the EULA for the summarising site. Would have to be some pretty strong language to avoid them becoming liable for consequences occurring between the precise language in the original document and the dumbed down version provided. Either that or it'd be plainly-written and simple enough for even a budget lawyer to take down in court, for the intermediary to be liable for many, many huge sums of cash, and then go out of business.

      3. Ken Hagan Gold badge

        "If it isn't something that a reasonable layperson can be expected to read and understand, it is not legally enforceable."

        A contract requires a meeting of minds. If the text appears readable to a lay person but actually contains legal gotchas that a lay person wouldn't spot, those gotchas are probably unenforceable. If it just isn't readable then that lay person probably shouldn't agree to it. The contract discussed in this article is readable, but so long that the average Joe won't read it. Whether that constitutes a deliberate attempt at obfuscation (making it an "unenforceable gotcha") is a matter for debate but if it isn't then we should expect to end up in a world where every contract is ridiculously long. Oh wait...

      4. Missing Semicolon Silver badge
        Happy

        Timeouts

        If you can't read the EULA before the web site or signup attempt times out, then you can't possibly be bound by it.

    3. a_yank_lurker Silver badge

      AC - It ain't happening mostly because those hiding behind the sleaze and their shyster cronies will never want to be 'outed' as the sewer rats (apologies to sewer rats) they really are.

    4. Anonymous Coward
      Anonymous Coward

      forced arbitration

      This, chums, is why forced arbitration should be illegal.

      But would your opinion be the same if the test case (and especially the defendant) changed? For example, would you be in favour of mandatory arbitration as the last-ditch measure for the public-sector (or more broadly, essential-service privider) employment contract negotiations, together with a ban on using both strikes and lockouts as a negotiating tactic?

      1. Orv Silver badge

        Re: forced arbitration

        I might be convinced if the arbitrator were in some way impartial. But in these cases the company pays the arbitrator, which is under strong pressure to rule in favor of the company, lest they take their business elsewhere.

  2. swampdog
    Happy

    The trouble is..

    ..uber are just one in a long line. For decades, all sides of the pond - those T&C's have been gibberish to normal folk.

    It's barely even possible any more, to avoid the T&C's, even if you pay cash. Mind you, this new autumn of millennials can't handle cash. On the up-side I've had two cheap Mc'D meals this week. Seems they don't understand £2 coins.

    1. elDog Silver badge

      Re: The trouble is..

      And I work with a fine bevy of legal beagles. From corporate to criminal to whatever. And none of them can really interpret the legalese in an absolute way: If I do X, can I do Y. The fine print (2pt) is matched by the intentional obfuscatory wording.

      As some two-bit playwright penned: "The first thing we do, let's kill all the lawyers"

      There. Solved a lot of problems for us all. Most of congress is made up of JDs/LLDs. Oh, well there are too many MBAs, pest exterminators, etc. Let's just get back to people's justice.

      1. swampdog

        Re: The trouble is..

        Around about the time I was born (60's) my father stopped being a "lawyer". All I know (from my mother) is he came back one day from court, fuming. There was was some miscarriage of justice and he could do nothing about it. He was so pissed off, he left his job & never did criminal work again.

        "son", "never trust a lawyer". I can add to that..

        Never put down to malice that which can be put down to stupidity.

        Never put off until tomorrow that which can be but off until next week.

        1. Snorlax

          Re: The trouble is..

          @swampdog:"There was was some miscarriage of justice and he could do nothing about it. He was so pissed off, he left his job & never did criminal work again."

          Did they not have appeal courts back then?

          1. Smooth Newt
            Meh

            Re: The trouble is..

            Did they not have appeal courts back then?

            I am sure they did, but they probably also had clients who weren't multi-millionaires too.

            1. Snorlax
              WTF?

              Re: The trouble is..

              @Smooth Newt:"I am sure they did, but they probably also had clients who weren't multi-millionaires too."

              Why would you need to be a multi-millionaire?

              A defendant in a criminal case is entitled to legal aid (or a public defender if you prefer to call it that) if he can't afford to pay for representation.

              All I can tell from the original story is that a lawyer threw in the towel on his client?

              1. Smooth Newt
                Meh

                Re: The trouble is..

                Why would you need to be a multi-millionaire?

                A defendant in a criminal case is entitled to legal aid (or a public defender if you prefer to call it that) if he can't afford to pay for representation.

                Only a small proportion of the adult population are entitled to meaningful legal aid. In the UK, you are entitled to legal aid covering your full costs in criminal cases if your income is no more than £12,475 and you have assets (including your car, any equity in your home etc) of no more than £3,000. It tapers down quickly and e.g. you won't get anything at all if you have more than £8,000 in assets.

                If it is a complex case, which it would almost certainly be for the Appeal Court, you will need experienced counsel at around £200 per hour for a solicitor and double that for a barrister, and you will probably have several of each. So you can easily be looking at a bill of £50k if you lose, plus the Crown Prosecution Service's costs, probably a similar amount. So, unless you are either very poor or wealthy enough to be able to bet £100k on the outcome, then the Appeal Court is probably out of reach to you.

  3. tin 2

    I wonder if you post them a 40 page letter saying actually you don't agree and/or they therefore agree to a load of stuff too, and presumably they don't read it, it's binding too then?

    1. Nick Kew Silver badge
      Thumb Up

      Remember when T&Cs used to appear in a piddling little text box in an HTML Form? All those hundreds of lines in a 4-line window.

      On occasion I actually deleted all of that, and substituted my own words. Something like "Illegible T&Cs deleted for clarity". Thus I was demonstrably not agreeing to something that I couldn't hope to read without jumping through hoops.

    2. Wade Burchette

      I was giving a contract by an advertisers. In it was a binding arbitration clause. They had several ways of me signing the contract. One way was to print the first page and email the scan to them. So I printed the entire thing, crossed out the binding arbitration paragraph, and emailed the whole contract back to them. The advertiser sent me a thank you note a few days later. This shows that the advertiser did not read their own contract. Probably because almost everyone is too lazy to bother reading the contract so they assumed I was too.

      One of the reasons why I have not installed Windows 10 is because I read the terms and conditions and I do not agree with all of them.

      1. Kevin Johnston

        I was working on a contract when the agency wanted to change the contract details. I read the new one carefully and challenged several clauses. The agency repeatedly failed to amend it as I requested and eventually they sent me a copy in Word for me to edit instead. It included the scanned signature for their senior manager so I completely re-wrote it making all the terms in my favour, printed it and signed it then sent it through to them. They made no comment so since there was only one copy with both parties had 'signed' then clearly that was the contract in force :)

        1. Ken Moorhouse Silver badge

          Versioning

          To my mind there is no method of tallying an on-line version of T's & C's with a user's tick box response. Tallying in our high-tech world should involve an MD5 hash or equivalent to indicate that the user agrees to this specific version of the T's & C's, because tomorrow the site owner can change the wording and claim that this is what you agreed to.

          Surely then they would have to go through the hoops of proving, from the Raw Access Logs of the webserver when the T's & C's were uploaded, and when I visited, but if the website owner has physical access to the site, they can go behind the scenes to change the file.

          Returning to the MD5 hash principle of proof: even that is not entirely watertight as collisions are possible, but statistically implausible. The other way is for the website owner to send you a copy of what you've signed by email, or get you to sign a secure document.

          Javascript is another way to serve up something different to what you think you are agreeing to.

          Where I suspect there could be this kind of problem I simply save the webpage of the legakese, so I have a contemporaneous record of what I have agreed to.

          1. Swarthy Silver badge

            Re: Versioning

            Ah, but there in section 5, sub-section 9, paragraph 6, it says that they reserve the right to change the terms without notice, and you agree to be bound by whatever those terms will be.

        2. Def Silver badge

          It included the scanned signature for their senior manager so I completely re-wrote it making all the terms in my favour, printed it and signed it then sent it through to them. They made no comment so since there was only one copy with both parties had 'signed' then clearly that was the contract in force :)

          Or they simply printed out the page with your signature and stuck it with the rest of the original contract.

          You did remember to initial each page, right?

          1. Charles 9 Silver badge

            If they're willing to do that, they're also probably willing to hire a forger to initial fake pages for them as well, probably even create a forgery of an entirely new contract and then sociopathically lie that your copy is the fake and that you bribed a civil clerk to falsely certify the copy (and used insiders in City Hall to plant the evidence).

            IOW, if someone REALLY wants you, if they have more connections than you do, consider yourself screwed. Much as civilization likes to say it isn't so, in the end might makes right.

        3. Jonathan Richards 1
          WTF?

          '...they sent me a copy in Word...'

          Yay! Wiki-agreements: the contracts any party can edit!

          1. Anonymous Coward
            Anonymous Coward

            Re: '...they sent me a copy in Word...'

            Yay! Wiki-agreements: the contracts any party can edit!

            Isn't that the whole point of a contract, when honestly negotiated and knowingly entered into?

            1. Charles 9 Silver badge

              Re: '...they sent me a copy in Word...'

              Except for the part of it already being signed...

  4. ecofeco Silver badge

    It didn;t used to be this way

    In the past, courts often ruled that you could not give up your fundamental rights no matter what you signed.

    Then over the course of the last few decades, somehow business became above the law and individual rights.

    America is an outright fascist nation.

    1. Snorlax

      Re: It didn;t used to be this way

      @ecofeco:"America is an outright fascist nation."

      I agree with you 110%.

    2. TheTick

      Re: It didn;t used to be this way

      Are you suggesting that in America you can waive your right not to be a slave if that was in the terms and conditions, and that the courts would uphold it and the federal government enforce it?

      If not - then you cannot give up your fundamental rights by signing them away in America and what you say is total tosh.

      1. Velv Silver badge
        Headmaster

        Re: It didn;t used to be this way

        "Are you suggesting that in America you can waive your right not to be a slave if that was in the terms and conditions, and that the courts would uphold it and the federal government enforce it?"

        That is exactly what the court has sanctioned. The T&Cs remove the right to resort to the established legal system, and the judge has ruled this is acceptable.

  5. PeterBerry

    If it's obvious that agreeing to the terms and conditions are legally binding, then surely the obvious response is the nuclear one: we should all stop and read every word and send emails querying legalise we don't understand and ask if things we don't like could be changed please, before clicking "I agree" - however many days it takes. Same in physical stores incidentally, but with the addition of thermos flasks, sandwiches, A4 note pads and folding stools.

    I'm up for it. Anybody else?

    1. tin 2

      Will not work, because the firms have figured that if you don't agree, you can do without the service. They're not interested in spending the time/effort to appease your issues, just sign it and get on, or go elsewhere.

      What this needs is legislation, but I can't for the life of me work out quite what that would look like.

      1. elDog Silver badge

        Agree - won't work. We all want the latest "shiny" NOW!

        F them legaleses!

      2. Adam 52 Silver badge

        "What this needs is legislation, but I can't for the life of me work out quite what that would look like."

        Something like this?

        http://www.legislation.gov.uk/uksi/1999/2083/contents/made

        1. Ken Hagan Gold badge

          Re: http://www.legislation.gov.uk/uksi/1999/2083/contents/made

          Section 5, in particular:

          "(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.

          "(2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

          Of course, IANAL so I can't actually say whether those clauses would help a UK customer. (Section 9, by the way, seems to make it perfectly clear that UK law would apply to such a case.)

          1. Vince Lewis 1

            Re: http://www.legislation.gov.uk/uksi/1999/2083/contents/made

            I thought about using this against VALVe, but since their Lawyers convinced a Judge Computer Games are not Software, I don't fancy my chances.

      3. Ken Hagan Gold badge

        "firms have figured that if you don't agree, you can do without the service"

        The firms can't do without us anymore than we can do without them. It's a question of numbers and the OP was suggesting that all customers should take this approach. That's very unlikely, but it would be immediately effective since otherwise the company's revenue simply dries up, forever.

        1. Charles 9 Silver badge

          "The firms can't do without us anymore than we can do without them. It's a question of numbers and the OP was suggesting that all customers should take this approach. That's very unlikely, but it would be immediately effective since otherwise the company's revenue simply dries up, forever."

          Point is, you'll never get that far. As P. T. Barnum once said, "There's a sucker born every minute," and there are seven billion plus of us. As long as they can convince enough suckers to sign on, the rest of us can go chase unicorns as they can then just reply, "Next!" The kind of unity you'd need to convince most of the population to rally behind you would need to be supported by some life-and-limb whiter-than-white issue, and this simply doesn't tick all the boxes.

          The TL;DR version: How do you win when you're surrounded by idiots?

    2. This post has been deleted by its author

    3. Allan George Dyer Silver badge

      Up for it? Already did it, last time I renewed my phone contract. Went to the shop, insisted they printed the T&C in English, not Chinese, read it standing there in the shop, amended the bits I wanted to in pen and signed. Didn't even need the thermos and sandwiches, only took half an hour.

      It worked because the assistant wasn't briefed on how to handle it, and thought it was easier to complete the transaction and hand the paper on to administration.

      1. Ken Moorhouse Silver badge

        Acceptance of T's & C's

        Some years ago I bought hosting and domain from a place [that shall remain nameless] for one of my customers. The customer paid for it by credit card, the site was designed and uploaded.

        Roll on a year. Got a reminder from hosting company saying to pay to renew, or else it will be cancelled. I contacted customer "that website, shall I renew it?" Answer came back in the affirmative, so I renwed it using my card.

        Roll on another year. Got a reminder from hosting company saying to pay to renew, or else it will be cancelled. I contacted customer "that website, shall I renew it?" This time the answer was no, so I didn't think any more of it.

        When my credit card statement arrived I noticed that I'd been charged for it. I contacted the hosting company and my bank to revoke the payment.

        Hosting company said that as I had a rolling account with them I had to explicitly cancel the hosting, even though their email said it would be cancelled. They told me rather snottily to read their T's & C's and I was ready to put that one down to experience.

        Then a rather curious thing happened: the bank chased me "why haven't you filled out the revocation form we sent you?" I told them that I didn't really have a leg to stand on, but they said "well, we'll keep it open for you, just in case you wish to explore the circumstances thoroughly." Hmm, unusual for the bank to be this amenable, I thought.

        So I read their T's & C's and in them was the nugget (paraphrased) saying that in subsequent years hosting fees will be deducted from the credit Card used initially. Initially??!! I immediately filled out the bank's form and sent it off, together with a copy of the T's & C's with that word underlined, pointing out that "initially" the hosting was bought using a different credit card. I got refunded immediately.

        Ok it was a technicality, but the deceptive wording on their renewal email deserved it. I really must check to see if they've altered that clause.

        The moral is not to be cowed by "the big boys legalese".

    4. heyrick Silver badge

      When I upgraded iOS, I completely ignored the ridiculously long list of TS&Cs. The machine had already updated itself so there was no way to back out, so the only option was forwards, meaning you couldn't not accept them.

      I'm sure in a country with a shitty legal system like America, it may pass as legitimate behaviour. I hope that the country in which I'm living has more sensible judges...

      1. Anonymous Coward
        Anonymous Coward

        To be fair to Apple

        {I know that this is like a red-rag to a bull here}

        but they do publish their Terms and Conditions.

        https://www.apple.com/uk/legal/sla/

        and you can revert to the previous version of iOS as long as Apple are signing it.

        Here is one article on the subject

        https://www.howtogeek.com/230144/how-to-downgrade-to-an-older-version-of-ios-on-an-iphone-or-ipad/

    5. Roland6 Silver badge

      >then surely the obvious response is the nuclear one: we should all stop and read every word and send emails querying legalise we don't understand and ask if things we don't like could be changed please

      Probably the best thing is to respond in kind: send them your T&C's by snail mail giving them a 14 day cooling off period, after which your T&C's take precedence over their T&C's...

    6. Tim Seventh

      T&C Everywhere!

      " if things we don't like could be changed please, before clicking "I agree" "

      Imagine a country where each customer that wants to walk into a store need to sign a T&C and the customers would also give a T&C to the salesman and manager to sign before walking in.

      By that time, it is only a question of time before someone owns everyone's first born (from T&C: your first born is mine).

  6. Jim Mitchell

    Perhaps things would be better if instead of "Terms and Conditions" they were labeled as "Legally Binding Contract", which they apparently are.

    Also, software that displays the EULA in a purposefully small window is evil.

  7. 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

  8. 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?

  9. Snowy
    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.

  10. 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.

  11. 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 Silver badge

        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.

  12. 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 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."

        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 Silver badge

      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. TechnicalBen Silver badge
      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

  13. 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 Silver badge

      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.

  14. 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.

  15. Jack of Shadows Silver badge

    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/

  16. Zog_but_not_the_first Silver badge
    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 Silver badge

      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.

  17. 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 Silver badge
      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

  18. 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 Silver badge

        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.

  19. Snorlax

    "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

        @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.

  20. Velv Silver badge
    Boffin

    Standard T&Cs

    The sensible option would be to have a published standard set of conditions that we can all be familiar with and therefore should be easy to explain and accept.

    OK, so each business is going to argue their own unique nuance, but really, are any of them all that different.

    It's been done in Scotland. When you buy a property each sides solicitor/lawyer would draw up their version of the contract. Much back and forth would take place until agreement was reached. To simplify the process a Scottish Stand Clauses was approved by the Law Society.

    Perhaps this is something Which? or similar could champion (in the UK)

    1. Charles 9 Silver badge

      Re: Standard T&Cs

      Problem is, in many cases, one side and/or the other DON'T WANT the process to be simple.

      In your case, as is the case of a mutual contract between parties of equal standing, the buyers want to close the deal and move in and the sellers usually want to do something with the proceeds tout suite (such as buy another house, so domino effect), so both legal teams are pressed to hurry up lest the deal get abandoned out of impatience. Mutual contracts thus have motivation to get it over with.

      But most T&Cs that we think about are one-sided, "deal or no deal" propositions. Basically, the provider is in full control because if you don't bite, someone else will.

  21. Curtis

    "No one reads those"

    When I started at my current employer, on an Internet Hell Desk, I was assisting a new customer setting up a modem. Part of the setup includes walking through a walled garden that requires the customer agree to a "Terms of Service" This is as close to the exact wording as I can remember:

    Me: "Ok, now just read the Terms of Service, scroll down, and click agree."

    Her: "I'm a lawyer. No one reads these. I'll just agree."

    Me: "Umm, you really should have read that first. <Company Redacted> now owns your soul."

    Her: "I'm a red-head. I don't have one."

    Much humor was had, manglers got involved, and there was some talk about possible misconduct. The fact that the CUSTOMER said it saved my job.

  22. Anonymous Coward
    Anonymous Coward

    And that, kids, is why I DO read them: but what about fake names?

    My work requires extreme awareness of what happens to data as I have a duty to protect clients.

    This is why I read T&Cs and if you would have really worked your way through the ones that you, for instance, accepted when you started using Google and Facebook you would have never agreed to them.

    There is, however, a question I have not seen answered yet: what happens if you use a fake name when you sign up? I know that both FB and Google "insist" on people using their real name but as long as you use something halfway plausible and don't use it for messaging/email you would have a contract in a name of a person that would not exist, I don't think there's such a concept as a legal nom de plume in contract. The flipside of these agreements is that the worst they can do there is to shut down your account. That's possibly bad for people who live their live online but it would make zero difference in my case.

    1. Ken Hagan Gold badge

      Re: And that, kids, is why I DO read them: but what about fake names?

      "what happens if you use a fake name when you sign up?"

      I think the position in the UK is that you can operate under as many names as you like as long as the aliases are not intended to fool someone. So, in your example, either you intend to use the name fraudulently, in which case they can sue you for fraud, or you don't intend that, in which case UK law (at least) says that "fake name" is your legitimate alias for the purposes of this contract.

    2. Snorlax

      Re: And that, kids, is why I DO read them: but what about fake names?

      You could be seen as having accepted the terms of the contract through your continued use of the service (see Brogden v Metropolitan Railway), regardless of the name used to sign up.

      Celebrities operate social media accounts under their stage names, don't they?

  23. JulieM Silver badge

    Six Little Words

    There are six little words that appear in every set of Terms and Conditions, as follows:

    Your statutory rights are not affected.

    Meaning that whatever you may think you are agreeing to, anything the Law of the Land already gave you the ability to do, is still yours to do. You cannot legally enter into a contract which diminishes your rights under the Law of the Land. They might try to scare you off, but there are certain prohibitions they simply cannot enforce.

    Unfortunately, it's still your job to know what these are, and not their job to tell you -- apart from the six-word reminder that they even exist.

  24. Steve 114

    Obiter

    Was it not an English Judge of long ago who said: 'He who has eyes clear enough to read [these terms] has not experience enough to understand them' ?

  25. Ian Bremner

    So let me get this straight. In 'Murica, if you install an app you have to agree to a list of T&C's that are not actually presented to you but given as a link on a webserver that may not actually be online?

    **By reading this comment you agree to the Terms and Conditions outlined in the document which can be found in the basement of your local Planning Department in the bottom of a locked filing cabinet in a disused lavatory with a sign on the door reading "Beware of the leopard".

    Please bring a torch as the lights aren't working (Neither are the stairs)

  26. ps2os2

    Uber

    This is typical of a dot com company to treat its users so poorly. I would never use them as the people that I know can't make a living off of it and they do work 12 hours a day.

  27. jrchips

    Wait until you get pages of virtually unreadable T&Cs for your autonomous vehicle.

    The bottom line will be; if you own it, it's yours and it's your responsibility even if the software's flawed. That's how the autonomous vehicle makers will try to escape liability. But it probably won't work. Class action lawsuits over vehicle-related deaths have been very successful. The tech industry and auto industry aren't the same thing.

  28. Jonathan 27 Bronze badge

    This is why I never accept EULAs, my cat Mr Fluffy does for me.

  29. Anonymous Coward
    Anonymous Coward

    Given that T&C are never to the customers benefit

    Then the answer is not to use anything that comes with unreasonable T&C, in the UK atleast your statatory rights mean that you cannot sign away your legal rights no matter the contract.

    Given that in the US the state makes it plain that it protects the rights of the vendor over the normal citizen then your only option is not to use anything with unreasonable/unclear T&C.

    I am not saying I agree with this situation but whilst it exists your only power is to not sign any contract and hence not pay any dodgy companies. Without income those companies who exploit their customers will go bust, you might also try getting the law changed but since there are so many vested interests involved it is unlikely to happen, certainly not under the current regime.

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