So, you’re in a new app on your phone, say a dating site or a sign-up for some software, and this long legal agreement pops up with an “I agree” or “I accept” button at the bottom. The agreement might be labelled “Terms and Conditions,” “User Agreement,” or “Privacy Policy. Your only alternatives are to accept the agreement as is so that you can use the product or service or to decline and forfeit the ability to use a product or service which you may need badly and not be able to replace with a competing version. (These sorts of agreements are known as click-wrap or click-through agreements.)
The agreement may be daunting, even for lawyers. While vendors concerned that their agreements will be upheld will endeavor to make their agreements understandable by the average person, many vendors are not so scrupulous, and that standard may be difficult to meet. Moreover, most people don’t have the time to review the agreement and so will accept it without even reading it and hope for the best. And even if the user did take the time to read it, engaging the vendor on a point the user found objectionable is not an option. No doubt, the overwhelming majority of users will click on “I accept.”
Click-wrap agreements are a type of contract known in legal terms as a contract of adhesion. These are standard form agreements that are drafted by one party with very little or no input from other parties. The other party does not have the option of negotiating or refusing to accept the contract if they want the product or service tied to the contract, and so these agreements are characterized by grossly unequal bargaining power among the parties. Because of the nature of these contracts, courts may look at them with a critical eye and scrutinize them more closely, or if they find the contract to be unconscionable (i.e., grossly unfair), the court may strike down the agreement in whole or in part.
Nevertheless, there are few court cases addressing the validity of click-wrap agreements, but those that do exist tend to uphold them. I find this state of affairs unsatisfactory. As noted above, these agreements must be accepted as is. We encounter so many of these agreements (perhaps even more than one in a day), that it is unreasonable to expect people to have the time and skill to understand what they are agreeing to. Accordingly, I have no doubt that the overwhelming majority of individuals are just clicking on the “I agree” button without having any notion of what they have agreed to. And I don’t believe that such individuals are behaving unreasonably or carelessly. Rather, as people with limited free time, probably little in the way of legal skills, and likely in much need of the product or service, this practice is understandable.
Not only do most people not have the ability to read and digest these agreements, but even if they did and had an objection, as noted above, they are not really in a position to negotiate a change with the vendor that drafted the agreement. And if the consumer of the product or service believes that the agreement or vendor have violated their rights, what are they to do? Challenging most aspects of these agreements in court is unlikely to be practical or worthwhile, as the stakes are often just not high enough to justify the cost. Is there any wonder that many of us feel a fair amount anxiety when these agreements pop up and we click “I agree” without even looking at the text?
Here is an approach to this problem to consider. Instead of allowing vendors to submit whatever form of agreement they see fit, the government could set up a body or commission an organization such as the American Bar Association to produce approved forms of click-wrap agreements for different purposes and industries. The body or organization would be tasked with producing form agreements that are fair to both parties. (This is similar to the approach taken in other contexts, such as the form real estate agreements used in New York.) The government could mandate use of these form agreements or vendors could voluntarily adopt them, the notion being that consumers will gravitate to sites that use approved forms. In return, vendors could be confident that they will not be subject to lawsuits over the agreements.
No one should pretend that this proposal would be a slam dunk; to the contrary, it is a rather complex endeavor to say the least. Given the number of industries and purposes involved, a myriad of form agreements would need to be produced. Moreover, many vendors would likely object to losing control over these agreements and claim (most probably unsuccessfully) that this proposal is a violation of freedom of contract. But America has enough legal talent to make this work, and American consumers have a right to relief from the anxiety and risks of the status quo.
