Eliza Mik, ‘Terms of Use: Reflections on a Theme’

The paper presents multiple perspectives on the unpopular but omnipresent terms of use (or “ToUs”), i.e. terms and conditions contained in a link at the bottom of many websites. ToUs serve different functions: from governing the transaction taking place on a website, (e.g. contracts of sale) to the very act of browsing. Accordingly, every browsing experience has both a commercial and a legal tint. On a theoretical level ToUs raise concerns with regards to their validity as legally binding contracts as well as to their incorporation. Both formation and incorporation converge on the presence and quality of contractual intention. The latter underpins the freedom of contract – a concept frequently overlooked in endless discussions of “click-” and “browse-wrap” agreements. One must not be deceived by the paper’s purely contractual perspective – problems of ToUs underlie many legal aspects of privacy and intellectual property. Our most important online relationships with providers like amazon, facebook or google are governed by ToUs that are frequently perceived as irrelevant, unimportant or simply unenforceable. Many traditional arguments raised “against” standard terms can be transposed onto online ToUs. Care must be taken not to imply that these arguments are new or unprecedented. What cannot be denied, however, is that the growing importance of ToUs online sheds new light on these “old” problems and forces a re-evaluation of some traditional positions in light of the technological possibility of ensuring a nearly seamless communication process: informing the website user that terms exist and ensuring their availability. At present, the problem has not been addressed in any of the Asian jurisdictions. Given the growing importance of online transactions in their national economies it is only a question of time when courts will have to confront ToUs in all their complexity.

Mik, Eliza Karolina, Terms of Use: Reflections on a Theme (June 5, 2014).

First posted 2014-06-08 06:32:07

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