Unethical ToS and similar documents

I am one of the rare exceptions who often actually takes a look at the contents of the ToS and related writings, before I sign up for a service. The result of this is, more often than not, that I choose not to sign-up… Such is the character of the typical ToS.

A particular annoyance is the common combination of claims that use of a service implies acceptance of the terms, that the terms are subject to regular change, and that it is the responsibility of the user to regularly re-visit/re-read the terms. While the first two, alone, may be acceptable, the result of combining them with the third is unconscionable—and, likely, a deliberate attempt to make sure that the users do not know what they agree too at any given time. Notably, it is not practically possible to keep up-to-date with all the services of today, re-reading the entire documents after each update is a disproportionate amount of work, and there will almost always be some window of unawareness after every change—even for those who do try to keep up (or else every single use would require re-reading the ToS).

With some over-simplification, we have two occurring cases:

1. The user has entered some kind of formal or semi-formal association, including having provided contact information or having a fix account which he logs into. In this case, it is very obviously the responsibility of the service provider to use these mechanisms to explicitly make the user aware of the changes. Doing so is cheap and easy—and since the same mechanisms are typically used to force various forms of advertising down the users’ throats, they are within what the provider must consider reasonable.

   Not doing so? That is based on the wish to not inform the user of changes to his disadvantage. Notably, I have repeatedly received on-paper messages from e.g. banks along the lines of “Our ToS have changed. If you do not consent please object within two weeks. The new ToS can be reviewed in our locales.”—where it would have cost nothing to just quote the changes in the letter…

2. The user is not formally registered, but e.g. an ordinary visitor of a website. In this case, the most reasonable interpretation is that the ToS simply do not apply, that they have not been brought to the users attention in a manner that is sufficiently obvious to be binding.

Between these, there are obviously various mixtures and variations. Most (not necessarily all) will be invalid for reasons deducible from the above.

Generally, deliberate attempts to make the users not read these documents are common. Consider e.g. the common practice of putting parts of the text in near unreadable all-caps, the use of fine-print or footnotes for vital information, or the absurd practice of putting a text that should fill a long HTML page in a minuscule and entirely unnecessary text area. This if the text can, at all, be found: Even today, it is not entirely unheard of that e.g. the ToS are so well hidden that the user has to deliberately search for them, should he wish to view the contents.

Among the many other evil tricks, we have the in-the-ToS clause that allows the service provider to abuse the users data in more or less anyway he sees fit—something which should always be solved by a separate, explicit query as to whether the user is in agreement. (Further, something that is usually sufficiently irrelevant to the service it self that a “no” should not have any effect on the users possibilities to use the service—in particular not, when he is actually paying for the service.) We have the “we may spam you” clause, the “we may irrevocably delete your contents or terminate you account on our whim” clause (as opposed to e.g. a “we may block your contents/account pending a clarification on our whim”), the “no matter what we do wrong, you have no rights to indemnification” clause, the “if someone hacks your account, you bear the full responsibility” clause, etc.

Some of these have some justification at least some of the time; however, the way they are formulated (and, typically, applied), the balance between legitimate interests is tipped far beyond what is conscionable and ethical. In fact, at least in Germany, it is relatively common that even the ToS of a major off-line business (a bank, a telephone provider, whatnot) are found to be in violation of the applicable laws—typically, in my impression, not through oversight, but through a deliberate attempt to trick the users into believing that they have less rights than they actually do have. I even recall one instance when Amazon tried to rule out my legal right to return a mis-order by pointing to, believe it or not, statements on their help pages… (Which, even had they conformed to the law on this point, would not have been legally binding in any way, form, or manner.)

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