[otterley]

> From a factual perspective, I honestly think that shouldn’t be controversial: it’s well-understood that very few people actually read those things, they just want to get them out of the way

There’s no way this would fly. “I didn’t read it” can’t possibly be an excuse to avoid being bound by an agreement. Every party to an agreement that flaunted its terms, even though they took advantage of the benefits granted by it, would invoke it as a defense, and it’s irrefutable. The system would completely fall apart if this happened.

There’s a balance that needs to be carefully managed here. Yes, fairness to consumers is important. But you can’t destroy the incentive to produce value in so doing.

[znnajdla]

> “I didn’t read it” can’t possibly be an excuse to avoid being bound by an agreement

Only engineers have trouble understanding this. It can be a reasonable defense, and it has successfully been used in courts of law many times. The law is not a machine that compiles text like code literally. Imagine someone who coerces a dying or sick person to sign an agreement they couldn’t possibly be in a reasonable state of mind to understand what they were doing -- the law can and does invalidate such “contracts”. That is the same principle behind age of consent laws. The law could theorerically (and does) invalidate “agreements” which no one is reasonably expected to read and understand.

[otterley]

I am an attorney, and am aware of certain exceptions. But these are exceptions and not the general rule, which is what I am speaking of.

> The law could theorerically (and does) invalidate “agreements” which no one is reasonably expected to read and understand.

I haven’t heard of a single case where an agreement was voided because “no one could reasonably be expected to understand it.” Unless the language was so impenetrable or vague that the agreement itself could not be discerned. Lawyers tend not to write such agreements.

[IsTom]

EULAs are restricted in power in EU and at least to me these cookie banners are similar in spirit.

[tempestn]

"I didn't read it," sure. But, "A reasonable person would not read it?"

[ChadNauseam]

Why would a reasonable person not read it?

I just visited theguardian.com to see their cookie banner. The banner says this:

> Your Privacy (`x` button to close the tab)

> US residents have certain rights with regard to the sale or sharing of personal information to third parties.

> Guardian News and Media and our partners use information collected through cookies or in other forms to improve experience on our site and pages, analyze how it is used and show personalized advertising.

> You can opt out of the sale of all of your personal information by pressing

> <button>Do not sell or share my personal information</button>

It's 3 sentences, plus a button that says "Do not sell or share my personal information". I actually don't even think this is GDPR compliant, because my layman's understanding says that GDPR consent must be presented as opt-in, rather than opt-out. (I guess they are going for CCPA/CPRA compliance?) But anyway, I would think that a reasonable person could be expected to notice a button that says "Do not sell or share my personal information" and then click it, especially when it's portrayed prominently at the bottom of the page.

[preg_match]

> Why would a reasonable person not read it?

Because this is there 1 millionth cookie banner, because every site and their momma has one.

Also, 90% of cookie banners are not this good. They tell you nothing, hide the "reject" button behind multiple screens, etc. At that point the consumer is trained to click accept.

[zenalt]

From Europe it's this text:

> Personalised advertising - it's your choice

> Independent, quality original journalism needs your support.

> Please choose an option.

> * Accept personalised advertising and all cookies

> We use cookies and similar technologies to support the Guardian and personalise your experience in other ways. To do this we work with a cross section of [139 partners].

> - or -

> * Reject all and subscribe to Guardian Ad-Lite for €5 per month

> Read the Guardian website without personalised advertising. This does not include ad-free. You will still see non-personalised advertising and we may still use cookies and similar technologies to improve our site.

Followed by:

> Some cookies are necessary to help our website work properly and can’t be switched off. Find out more in our privacy policy and cookie policy, and manage the choices available to you at any time by going to ‘Privacy settings’ at the bottom of any page.

> Cookies and similar technologies collect information from your device and may be used to access personal data about you including page visits and IP addresses. We use this information about you, your devices and your online interactions with us to provide, analyse and improve our services. We use cookies and similar technologies for the following purposes:

> * Store and/or access information on a device

> * Personalised advertising, advertising measurement, audience research and services development

> * Personalised content and content measurement

And finally the buttons:

> ( Accept all ) ( Reject all and subscribe )

> If you already have Guardian Ad-Lite or read the Guardian ad-free, [sign in]

[inigyou]

Notice how they show you those three sentences and don't just put a bunch of small print at the bottom of the page. Because if they did, it would be invalid.

[troupo]

This is indeed a rather good implementation of ehat GDPR requires: clear unambiguous language, an opt-out available immediately.

This is the definition of informed consent

[jkaplowitz]

The GDPR doesn’t allow opt-out consent to count as consent. The only consent it recognizes as valid consent is opt-in.

However, since we are discussing the banner that The Guardian website shows to US viewers, I assume they’re trying to comply with California privacy law, which does allow opt-out regarding the sale of personal information.

[tacitusarc]

But it is complicated, no? Even if you click you agree, if the you thought you were agreeing to one thing but actually agreed to another because they buried the lede, “I didn’t read it” is a reasonable defense.

[SiempreViernes]

Why would you claim the false "I didn't read it" ahead of the true "I read it but understood it differently"? The latter allows for adding the fault shifting claim "because the other party wrote it deceptively", while "intentionally didn't read" makes it much harder to blame the other guy.

[otterley]

It just won’t fly in court. Full stop. There are perhaps other defenses to be raised, like unconscionable terms, but not that one.

[tacitusarc]

I think that means one of three things: the court system is broken, you are wrong, or I failed to be clear and you misunderstood me. So, to be clear, if a company buries or obscures terms while making it seem like they have presented them, so you agree without reading the actual terms, you cannot defend yourself by explaining that situation?

[otterley]

One possibility you failed to enumerate was that you are wrong.

But anyway. What exactly do you mean by “buried or obscured”?

As I said above, if the parties cannot be said to have an agreement because the terms of the agreement itself are inscrutable, then that would probably result in no contract being formed, or the terms at issue interpreted in the light most favorable to the non-drafting party. Like if the terms were presented in so small a font that only someone with a microscope could have read them, or it was written cryptographically or is gibberish.

Basically you have to successfully argue that no reasonable person could have read and understood the agreement. You’re unlikely to prevail if you argue only that you, the individual, did not. (Unless the court also finds you are incapable of entering into any contract because you’re a minor, are non compos mentis, etc.)

[ferngodfather]

It really depends on the term they're trying to rely on. We have the "red hand rule" in England and Wales that means that unusual and onerous terms will not be incorporated unless it can be expressly shown they were fairly brought to the parties attention.

[victorbjorklund]

It can and has been in many cases in many legal systems. For example, let’s say you walk into my store to buy a dish washer. I say ”here is an extended warranty that I will give you. Just sign” you sign it instead of reading 15 pages of boilerplate. In the end of the document it says you now owe me 10 billion dollars. Doubt I will be able to enforce it in most legal systems.

[otterley]

That’s not an “I didn’t read it” defense. That’s a “term is this contract is unconscionable” defense. They’re not the same thing. I was speaking strictly of the former.

Also, striking an unconscionable term typically does not void the whole contract. Just the term in question.

[bryanrasmussen]

As a general rule I believe many online terms of use, eulas and similar online contracts are examples of procedural unconscionability, in that length is often too long that one can be expected to read it in the day to day action of "surfing the web", I believe this is also the opinion of the EU and many of its member states, hence the limitations found on enforcement of such contracts.

Aside from that many of these contract have terms that might be considered substantive unconscionability - for example if terms state that what you post can be used by the company that owns the service for marketing of the company or the service I feel this would not make it through most legal systems that I feel before the attempt are not inherently corrupt.

[otterley]

I would personally be shocked if the EU voids click-wrap agreements for unconscionableness based on the process alone. I’m not super familiar with EU law; is that what it truly says? I rather doubt it because I do business in the EU and have been asked to agree to terms as a condition of making purchases online there.

[simonra]

Online retailers in the nordics occasionally try to post terms and conditions that contradict consumer protection laws, for instance retailers being on the hook for warrantying product(ion) defects for 5 years after purchases of products that ought to be durable, like electronics. The retailers win out on a substantial amount of the population not contesting it, but if you as a consumer go through the process the findings is basically always in your favor, despite there being agreements to something else. Telecommunications providers also have a long history of having their consumer invoices being voided for being unconscionable despite service agreements, especially in cases with children playing with devices (but otherwise also), going all the way back to the landline age.

[otterley]

Right. But those are substantively unconscionable terms, not about the agreement process itself.

[SiempreViernes]

The council directive on unfair terms in consumer contracts puts every pre-canned contract in scope, and unfair provisions on a contract are rule non-binding (if the contract can keep existing after the unfair bits are taken out).

https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A...

[otterley]

Right. But those are substantively unconscionable terms (“unfair provisions”), not about the agreement process itself.

[lukeschlather]

All of these cookie forms have the same set of toggles. At a high level all anyone is saying is that we should just declare any kind of tracking cookies unconscionable terms for this kind of dialog box. Caching, shopping carts, explicit log in, these are totally fine and you don't need a dialog. The tracking stuff is not that hard to define and it should just be declared unconscionable.

[victorbjorklund]

No, it is literally ”I didn’t read the contract”. Let me guess you don’t have a law degree in Swedish law and you are just making statements on every legal system in the whole world?

Just read avtalslagen paragraf 30. It says just that. And it is different from paragraf 36.

[otterley]

I read it. The law expressed therein appears to be consistent with typical contract law in the West, including the UK (from which US law is derived) and other European countries. I don't see any major differences. (Also, I'm not sure why you brought up paragraph 30 as that is about fraudulent inducement.)

See also https://svjt.se/svjt/1959/497 "En person borde sålunda bli bunden av ordalagen i det dokument han undertecknat utan att äga att ursäkta sig med att han icke läst igenom dokumentet."

[victorbjorklund]

No, I have a Swedish law degree and you have totally misunderstood article 30 if you claim it is about unjust contracts. You are mixing it up with art 36.

You are referring to a 60 year article and the sentence you highlighted is NOT his opinion on the old contract law (the contract law currently in effect is from 2020) but rather he is explaining the opinion on German law from another person.

Of course you as an American sees no difference between contract law in continental European law and common law.

[victorbjorklund]

This is what the Swedish Supreme Court said recently on the paragraph.

Enligt 30 § avtalslagen kan en rättshandling inte göras gällande om den, gentemot vilken en rättshandling företagits, framkallat rättshandlingen genom svikligt förledande eller bort inse att den som företog rättshandlingen blivit svikligen förledd av någon annan. Det finns en presumtion för att det svikliga förfarandet har framkallat rättshandlingen, om omständigheter som svikligen uppgetts eller förtigits kan antas vara av betydelse för rättshandlingen.

bad Google Translate:

According to Section 30 of the Contracts Act, a legal act cannot be enforced if the party against whom the legal act was performed caused the legal act by fraudulent misrepresentation or Should have realized that the party performing the legal act had been fraudulently misled by someone else. There is a presumption that the fraudulent misrepresentation has caused the legal act if circumstances that were fraudulently stated or omitted can be assumed to be of significance for the legal act.

[Y_Y]

That's why billionaires don't buy their own dishwashers

[nekusar]

This is bullshit.

https://www.nbcnews.com/news/us-news/disney-says-man-cant-su...

"Disney is trying to have a widower's wrongful death lawsuit dismissed and sent to arbitration because the man had signed up for a Disney+ account several years ago."

Now what happened was that Disney quit fighting over really bad PR. But the court challenge would have liteky succeeded.

[victorbjorklund]

You get that US is a tiny part of the worlds entire legal systems right? Just because US is messed up doesn’t mean the rest of the world is. Most people don’t live in US.

[Paracompact]

What's bullshit? You mean to say the dishwasher buyer would legally be on the hook for billions?

[nekusar]

Its bullshit that a terms of use can "agree" to what amounts to unconscionable terms.

Mozilla with their Thundermail just tried saying in their ToS that if you're mentioned at all in anything legal, you agree to pay their legal fees.

[c0_0p_]

That argument has actually worked in some cases, especially when you need to click away to actually access the document. I assume it's why we see more and more examples where you need to scroll the full body of text in order to "agree".

[bluGill]

Of you need a nonstandard contract then you need to provide proof that it was understood. These are not provided in a context where I would expect anyone reading it to have a lawyer to advise so they obviously don't understand it

[otterley]

By that same logic, do you believe ignorance of the law is a valid defense to a criminal charge? Laws are also written by lawyers.

[bluGill]

No, but I do believe that if the jury doesn't find it was obviously a crime without any being told the law then it wasn't a crime. That is the text of the law isn't important until guilty is decided. (So the jury can decide degree if that is a question for the jury, otherwise the judge needs to know for sentencing but the jury doesn't care)

[Avicebron]

> There’s a balance that needs to be carefully managed here. Yes, fairness to consumers is important. But you can’t destroy the incentive to produce value in so doing.

The value is derived from the people consuming the product. Placing the "incentive to produce value" above the people who presumably are the source of this value seems...misaligned.

[otterley]

If there’s no product or service to be consumed, there’s no value produced either. That’s the point: it’s harmful to eliminate the incentive to produce.

[Avicebron]

People will _always_ need things. There are very few things that will eliminate people's need for things and producers will of course adapt to the environment.

What we need is an environment that does not give the producers asymmetric power over consumers and the products will naturally align with that.

[inigyou]

What if only the incentive to produce bad things is eliminated

[monkpit]

* definition of bad is subjective and may vary depending upon which lobby group has the most cash to throw around

[inigyou]

no, I referred to actual bad things

[otterley]

The point is still correct. People often disagree on what is good and what is bad. It’s a judgement, not an indisputable fact.

[bee_rider]

I don’t see how we could possibly prove that the person who clicked “I agree” is still the person using the computer.

Or that any actual human is aware that an agreement was made (since an AI can find a checkbox nowadays or software can be configured to bypass it). One way to add balance could be to require people asking for contracts to actually treat them like real serious legal documents, show up for the signing, and figure out who they are making an agreement with.

[otterley]

That doesn’t matter. If you authorize an agent—human or mechanical—to enter into agreements on your behalf (even by mistake), and the agent presents itself as operating on your behalf, the agent’s decisions will be treated as though they were your own.

Prinicipal-agent law predates computers by a very long time.

[bee_rider]

What if an IT guy installs one of those “cookie banner be gone” extensions without the user’s permission?

[deaton]

But "its specifically engineered to ensure that nobody reads it" is a real argument

[otterley]

Where has this ever been adjudicated?