[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.

[troupo]

> The GDPR doesn’t allow opt-out consent to count as consent.

wat

GDPR says that opt-out is the default, and if you are asking for consent, it had to be clear, unambiguous, and with both chouces clearly present.

[inigyou]

You're both using different meanings of "opt-out"

Not legal: you have to click a button to be opted out, otherwise you're opted in. (Opt-out as a verb)

Legal: you are opted out by default (opt-out as an adjective describing the default situation)

[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.)

[tacitusarc]

A more concrete example may be useful to explain what I’m thinking. A company has you click to agree to their TOS. They link a doc, which is of course quite long. That doc has a footnote which links to another doc. You do not read the secondary doc, and it is the contents of that doc that allows the company to sell you data/prevent you from suing them/harvest your organs/abduct your family/whatever. My point is that “I did not read the document” should be a valid defense, such that if it is not I believe the law around this is wrong.

I suppose you can claim I am wrong to believe that, but it is accurate for me to state that I _do_ believe it, which is why I didn’t list me being wrong as one of the possibilities. Practically speaking, that is the first possibility I enumerated.

I should note that in my example, imagine neither doc is any more inscrutable than all the TOS we encounter in the wild, instead it is the construction (the fact it is a footnote link) that makes it easy to miss the additional doc.

[otterley]

Incorporations by reference are not unusual in contracts. A contract is unlikely to be voided merely because the contract has references and the counterparty didn't read them.

[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.