Most Online 'Terms of Service' Are Incomprehensible To Adults, Study Finds (vice.com) 129
Two law professors analyzed the sign-in terms and conditions of 500 popular US websites, including Google and Facebook, and found that more than 99 percent of them were "unreadable," far exceeding the level most American adults read at, but are still enforced. From a report: According to a new paper published on SSRN (Social Science Research Network), the average readability level of the agreements reviewed by the researchers was comparable to articles in academic journals. "While consumers are legally expected or presumed to read their contracts, businesses are not required to write readable ones. This asymmetry -- and its potential consequences -- puzzled us," wrote co-author Samuel Becher, a law professor at Victoria University of Wellington, in an email to Motherboard.
Do many know how to read properly? (Score:3, Informative)
I know myself many of the agreement are so filled with legal interpretation that unless your a lawyer or are familiar with some of its terminology. You probably do skip over some of the stuff that's important. I would guess that is not by accident that its worded as such to confuse the average user.
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What more can be said?
That you're wrong?
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It's a dead language but, for some reason, it's been decided it's appropriate for the law.
It's preferred because it's a dead language. That means the grammar and vocabulary tend to remain stable over long periods of time, unlike living languages which are constantly mutating.
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In my country (not USA), my government employer is required to make customer-focussed info brochures readable at a year 6 level.
I think two things contribute to the need to do this: children are taught to read and comprehend, but some just don't care; hard to teach someone who doesn't care, and people lose critical reading and comprehension skills if they aren't required to keep using them.
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Re: Do many know how to read properly? (Score:4, Insightful)
Well, I read the MS EULA, and switched to Apple. A few years later Apple revised their EULA (in an essential security update!). I switched to Linux even though it didn't have a decent word processor at the time. (Well, there was tex, but LaTex was broken, and AbiWord wasn't sufficient.) I ended up doing word processing in HTML and putting page numbers on by hand. But it was better than agreeing to those EULAs.
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Not sure why you had to use HTML. I've been on FreeBSD and Linux since at least 1995. I've never had any problems with text processing.
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If I'd bothered to learn and use Tex, I wouldn't have needed to. But HTML was quicker, Netscape had a decent HTML editor. So I never bothered to. I still haven't.
This was around 1997-98, so we're talking about the same period. Perhaps we were doing different things with the text.
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Curious, I used to say to myself "I don't agree but am pressing the button labelled 'I agree' because there's an asymmetrical power relationship at play."
Confusing? That's not a bug, it's a feature. (Score:2, Insightful)
Of course they're designed to be incomprehensible to anyone except a lawyer, they were written by lawyers in most cases. Doesn't matter if you've got three PhD's, unless you're a JD (and sometimes even then if you're not up on relevant case law) you won't have a chance of deciphering a EULA, TOS, or similar legalese document. That's not a bug, it's a feature to let them write the most onerous terms possible while obfuscating that from the end user.
All physical fine print (Score:2)
should be outright invalidated by the supreme court.
In the former case, because baby boomers or older can't physically read it (failing eyes).
In the latter case, because it's well known that most users, at least on PCs as opposed to smart phones, don't scroll (pretty much anything).
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The PayPal one is famously longer then Hamlet... Or was that Apple?
Regulation is needed. Make a few standard terms and let companies only pick one of them. Read once, applies the same everywhere.
That also means we get to decide the terms, e.g. there won't be a "we own all your photos and can sell them" option.
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Most is probably to avoid being sued rather than scam talk. "You agree not to use the service for terrorism" blah blah blah.
So you will need lawsuit reform. Good luck with that, in a country by lawyers for lawyers.
Re: Do many know how to read properly? (Score:2)
Nonsense. Most EULAs are straight up lawful fraud. What's the point in having kangaroo courts if we can't use them to fuck over the plebs?
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The only person at risk of being sued would be the government in that case, not the companies that were forced to use their ToS.
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In many cases, you need to take a law class or several to understand ELUA's, ToS and so on. It's not so much that there's legal interpretation it's that in legal documents all of the words, comma's, semi-colons, subsections, etc all count and explicitly apply.
Let me give you a few examples:
And - both sections in the sentence/section must apply for it to be considered in-force.
Or - either section can apply, but not both at the same time.
And/Or - both sections may apply at the same time.
Those are among the f
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Let me give you a few examples:
And - both sections in the sentence/section must apply for it to be considered in-force.
Or - either section can apply, but not both at the same time.
And/Or - both sections may apply at the same time.
Of all the examples of legalese, you picked the ones explicitly understood by a website full of software developers and engineers? That's the least confusing part of EULAs.
A much better example is the Latin phrase per se. People on Slashdot don't even spell it right, let alone know what it means legally. Translated from the Latin literally, it means "by itself", but in legal terms its meaning is closer to "inherently", which in practical terms translates to not having to prove something. Publishing writ
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Of all the examples of legalese, you picked the ones explicitly understood by a website full of software developers and engineers? That's the least confusing part of EULAs.
The number of people on /. that is full of devs and engineers these days can be counted between fingers and toes. The reality is, even the most educated person becomes an absolute idiot when confronted with something outside of their sphere of knowledge. If I really wanted to get into something, I'd have started with common knowledge(i.e. the sky is blue, grass is green) and it's application into law.
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This does seem to be something American and Euro/Australian courts kind of differ on a bit.
By definitions, a Contract isn't the piece of paper an agreement is written on, its the agreement itself. The piece of paper is just the evidence for that agreement. This might seem trivial but its an important concept to remember when interpreting a contract document. Many judges in Australian and Europe have basically said that EULAs and Contracts with incomprehensivel or contradictory terms are unenforcable because
Mission Accomplished. (Score:4, Informative)
Exactly.
Re: Mission Accomplished. (Score:2)
+1 funny
And therefore.... (Score:5, Informative)
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https://en.wikipedia.org/wiki/Meeting_of_the_minds - The reasoning is that a party should not be held to a contract that they were not even aware existed.
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But with each and every word "legally" meaning something other than what a linguist would say it means, much less what a common native speaker would think, is it at all reasonable to claim that there was a meeting of minds, or even a good faith effort to create one?
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Yeah, right. You're wrong.
About 1/3 of the way through your ISP service agreement, which you signed, on page 223, it says that you give your ISP permission to sneak in the middle of the night and harvest your and your family members' vital organs, unless your cable tv provider has already gotten them first.
Please explain why you would think this is unenforceable?
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What's the exchange going on here?
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What's complicated about that?
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Comprehensible to ~0.4% (Score:1)
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Not even that much. I've heard from lawyers that TOS and EULAs are a tough read for them too.
Basic Contract Law (Score:5, Informative)
For any contract to be enforceable, it has to have real and valuable consideration. Basically, I give you X and you give me Y. Lets say you sign a contract that says you give me your car. Not enforceable. Or, you give me your car, I give you a penny. Also not enforceable - not valuable consideration. Or, you give me your car and I give you $500. Now that's enforceable.
What does "enforceable" mean? Anybody can break a contract. Lets say you change your mind and you won't give me your car for $500 after you said you would. I'll never get your car (that's called "specific performance" and is pretty rare) but I can sue you for damages. What are damages?
Lets say I passed up a deal on a similar car for $600 so I could buy yours. Prices went up and now I have to pay $800 to get one. Damages are the difference, $200, and I'd win that in court.
A law professor told me that this is the basis for all contract law. You give me X, I give you Y. If you change your mind, you're liable for whatever extra your breach of contract cost me.
Sooooo.... A website's TOS is bullshit. Unless it's giving you a service valuable enough to bother going to court over. And they can't just pull a number out of their asses.
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They usually choose the number they pulled out of their ass a while back and got written into law.
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It would still be a good example of "them" pulling numbers out of their asses to justify whatever.
Sure, except it is a completely different "them".
If you want to pick a random group of "bad" people to make a false equivalence, why not just use the default: Nazis.
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ALL Laws ARE contracts.
Your citizenship is your consent to the contract.
Re: Basic Contract Law (Score:2)
If you buy that, I've got a great deal for you on a slightly used bridge in Brooklyn.
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"And they can't just pull a number out of their asses." And yet they do, including MAFIAA
That is for copyright violation, and has nothing to do with contract law.
Re:Basic Contract Law (Score:5, Informative)
And this is why you don't take legal advice from slashdot. IAAL.
There is consideration exchanged in website TOS. You get access to the site. They get your data (IP, clicks, browser string, etc). The data has value, even if they don't monetize it. So an exchange is made.
OP's point is about remedies. If you break TOS he says all they can recover is value of what they lost. Not so. One, violating a TOS can potentially carry criminal penalties under the Computer Fraud and Abuse Act (dumb I know, but it's possible).
Two, the problem isn't being sued for the value of your data. The problem is using the TOS to revoke your access to the site on flimsy pretext at the site owner's whim.
Say the TOS forbids you from saying anything bad about his website. If you break it, he can't stop you from badmouthing his site (recovery limited to value of your data). But he can cut you off from using his site any more. Now imagine that site is Amazon or Google. There's your problem. Imagine a contract that said by entering Walmart you consent to their discriminatory practices. That would never fly.
Biggest legal argument against website TOS is that they are contracts of adhesion. That means no opportunity to negotiate, no choice but to accept or forego the product. Such contracts are generally frowned upon in consumer goods. Yet somehow they survive in software and websites.
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Clearly advances have been made... Legal documents are a guild secret only for the initiated.
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One of us is high if it's reasonable to require everyone to have a degree in your chosen field simply to get by.
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In law?
Re:Basic Contract Law (Score:4)
The problem is using the TOS to revoke your access to the site on flimsy pretext at the site owner's whim. .(...) Imagine a contract that said by entering Walmart
"Sir, I'm going to have to ask you to leave and not come back." doesn't seem they need a ToS for that. The real creepy part about most EULAs and terms of service is not the threat of termination, it's what you grant. It's like hiring a plumber and the agreement says he must be granted access to your apartment and access all hidden plumbing, but in practice he'll rummage through your nightstand, laundry and mailbox "looking" for the plumbing. They'll just slurp up all the data under the pretense that it's a dumb, automated system that doesn't know what's relevant and not, your grievances will drown in the media and dragged out forever in the courts ending in a class action settlement for a $2 coupon, if you can even get that.
Personal Terms of Service (Score:1)
I'd like to have a Terms of Service agreement for myself, so that any company doing business with me must comply with my terms. It would be more or less like all the Terms of Service consumers are asked to agree with, but with the tables turned. It would have one of those "deemed to have accepted these terms" clauses so that company who "continues to provide a product or service" to me will be considered to have accepted my terms.
Then I would have a bunch stuff in there like, "you can't use my data except a
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I think that falls under Page 27, Paragraph 12; the Tough Shit Clause, which is cross referenced with page 98, Paragraph 3; the Tough Titty Addendum.
It is clearly there in light gray and white.
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Bye, you need us more than we need you.
Now make it into a law that this applies to every person, and you're maybe on to something.
That is what lawyers get paid to do (Score:4, Insightful)
Lawyers write everything in Legalese, Un Comprehensible, goobbly gook!
Just my 2 cents
Comment removed (Score:4, Funny)
It's Fine (Score:1)
We just use the services as we are, and get our terminations if we are incompatible as a person with the services. Then we find some other way to get the services we need.
businesses are not required to write readable ones. This asymmetry -- and its potential consequences -- puzzled us
I don't know if the US contract law follows the same principles like in some other countries, but these kinds of asymetries are interpreted to the benefit of the disadvantaged party, in this case the consumer. That's the general principle.
Most terms of services I have seen are readable, they are just too long and cover the edge cas
What's there to understand? (Score:1)
They're one-sided contracts that in essence say "we can do whatever we want, oh and by the way you also waived your right to sue us."
Re:What's there to understand? (Score:4, Informative)
It isn't unique to web sites.
Go to any medical procedure from a dental filling to major surgery and you'll be required to sign away a host of rights, usually with mandatory binding arbitration and forbid a wide swath of malpractice lawsuits against everybody involved. Go buy an item and look at the legal text often shown on the receipt, or the text on a receipt directing you to the web site for the conditions of sale. Look at the 10+ pages of employment contracts usually needed to get a job, which these days nearly eliminate the ability to sue employers for things like unpaid wages or wrongful termination.
Trying to shop around doesn't help because every business incorporates them.
Go ahead and tell your doctor that you won't sign away the rights until you've negotiated a new agreement that is fair. See how well that works.
What really needs to happen is an overhaul of contract law. Currently every imaginable service has been wrapped inside contract law, and thanks to many court rulings lawyers can remove all legal protections by crafting a contract. Most protections afforded in law can be wiped away with a service contract. Nothing short of a new SCOTUS ruling or major law change could correct the issue, and there is almost no chance of those happening in the foreseeable future.
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it may take an school bus being wiped out by self (Score:2)
it may take an school bus being wiped out by self driving car / truck to make it to an criminal court and that may just make it so that the logs / source code can't hidden to an court.
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CFPB for Tech (Score:4, Interesting)
This is the same thing the finance industry did with loans and credit cards. They wrote up 20 pages of tiny, tiny print, written at a college graduate level, and got away with stealing from people for years.
Then Elizabeth Warren got the CFPB created and the government required credit forms to be clear, with details about what you owe and how much it costs you.
We need this with tech.
Government isn't always the answer, but government is our protection from corporations who only care about shareholder value and not you, your family, or in some cases, your life.
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And then you accidentally look at the wrong sentence on the wrong page, and discover that you died from a poison needle trap.
So children can comprehend them? (Score:1)
Legalese (Score:2)
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The language is that of law demons which I will not utter here. In the common tongue, it says, "One ToS to rule them all. One ToS to find them. One ToS to bring them all and in the darkness rob them."
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Reflects on the terrible state... (Score:2)
...of education in this country.
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Why is it puzzling? (Score:3)
The contract is written by the online business and is therefore entirely for their benefit. So long as the percentage of consumers who refuse to do business with them because they either can't understand the terms or disagree with them is a rounding error they have zero incentive to make them less asymmetric. How can these academics possibly find that puzzling?
The solution to this problem - I have always felt - is some sort of "terms seal of approval". I observe that 99% of web sites fall into a tiny number of common categories. The government could create a handful of "Approved terms" which had been carefully vetted for fairness (to both sides), readability and enforceability. A website could then simply select the one most relevant to their business, insert a link and a seal of approval saying something like "Covered by Government Terms Type 3" or some such.
Both sides would benefit from such an arrangement:
Consumers would have only a tiny number of easily readable sets of terms to understand and certainty that these terms would not change without some sort of fairly widespread warning. They would also know that the terms complied with relevant consumer protection laws.
The business would benefit from (a) a good impression of a fair company being given to their customers, (b) no need to spend a lot of money getting a lawyer to hand craft some terms and (c) certainty that the terms would not be thrown out by the courts due to some drafting error.
So do we now all agree? (Score:2)
So do we agree that "Facebook's user agreement sucks."
https://www.cnbc.com/2018/04/10/senator-to-zuckerberg-your-user-agreement-sucks.html
Before you vote "yes" remember the guy who said this to the Zuck was a Republican Senator. Surprised?
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Before you vote "yes" remember the guy who said this to the Zuck was a Republican Senator. Surprised?
Why would anoyone be surprised? The right think he's the liberal elite, the left think he sold democracy down the river to the right for a buck. Everyone thinks he's a dick.
Informed consent, mentally incompetent ... (Score:2)
So if a person is able to prove that they are incapable of understanding the contract they have signed, they should be able to plead for relief.
But the issue is not that. These cases never go to court. All they need is a fig leaf to pretend wh
Credit card agreements (Score:4, Interesting)
Back in the 1990s, I got my first credit card. The first few times I had to sign the slip, I noticed it said I agreed to some cardholder agreement and then some other agreement. I thought "What's in that agreement?" Everybody thought I was crazy for even caring.
We failed to stop this train long ago. You implicitly agree to contracts when you buy a pack of bubble gum from a store, open an app, or make a phone call. It's too much.
We recently saw an article about a reported who tried to go without Amazon, Google, or Facebook for a week. How about trying to go a week without implicitly signing a contract? You would probably starve to death.
Perfect example (Score:2)
This one is actually readable. But if you do read it, you would be stupid to accept it:
https://www.driveuconnect.com/... [driveuconnect.com]
I started reading it and didn't even get to the parts where they describe how what you expect them to do is probably not going to happen. It spends a lot of text imposing restrictions on the customer, and how they can change the terms on a whim, with the only relief a customer can seek is canceling the service.
That kind of thing isn't acceptable during a "free trial", let alone if they exp
Kind of the Point (Score:2)
Nearly all terms of service are designed to obfuscate the fact that you are being royally screwed. How is this news?
Criminal/Civil laws can be as hard to understand (Score:3)
Probably 99% of adult US residents can't easily read and understand US income tax laws - yet they are required, under the threat of fine and incarceration, to follow them.
No one is required to agree to a TOS on a commercial website and, if they wish, they can have a lawyer review the TOS before agreeing.
In reality, I think most people (excluding those who are illiterate, and/or suffering from some forms of mental illness, and/or intellectually disabled) are just too lazy and/or unmotivated to read and understand most TOSs rather than "unable" to do so. Note that having to look up a phrase in a dictionary doesn't mean you are unable to understand a document containing that phrase -- and the next time you run across that phrase you then already know what it means. Note that having to refer to Section (x)(1)(II)(A) of a contract when it's mentioned by reference elsewhere in the contract may be time consuming, but it does not render the one "unable" to understand the contract. Long ago I used to read TOSs all the way through and never had a problem understanding them. Occasionally, I will still read one all the way through just to keep tabs on what tends to be in them and still have little trouble understanding them -- yes, it's a lot of work and if I actually insisted on reading every one, there are a lot of sites I wouldn't patronize as the cost of reading and understanding the TOS far exceeds the value of the site to me (although not, perhaps, to others).
Although, of course, I can't predict reliably how a court may interpret potentially ambiguous terms. However, the simpler the agreement is, the more likely there are to be ambiguous terms. For example, does the term "supplier" just refer to the subsidiary providing the service or does it apply to successor companies and parent company? Much of the complexity that makes a TOS harder to read is attempting to eliminate ambiguity -- as is the case in most legal documents. If the TOSs were more easily read, the resulting ambiguity would result in more class actions suits attempting to exploit that ambiguity.
Courts tend to apply the doctrine of contra proferentem to contractual interpretation, especially in contracts of adhesion ("take it or leave it" or "standard form" contracts) or in situations where the drafting party has more power and expertise than the non-drafting party (both true in the case of most TOSs). Under this doctrine, ambiguous terms/clauses are interpreted in favor of the non-drafting party. As a result, the drafting party must be very careful to remove any ambiguity that could be interpreted against them -- and this results in much more complex contracts.
Note also that "being unable to understand a contract" is quite different from "preferring that a contract's terms were different".
I agree this is a problem (Score:1)
I think requiring agreements that typical individuals (or the target market for whatever company) cannot easily understand violates both honesty and the Golden Rule. I wrote more detailed discussion on that here:
http://lukecall.net/e-92233720... [lukecall.net]
(I try to save copies of agreements I have read, with the name and date, and I have a very simple script I use sometimes to compare versions of contracts to see what changed, if anyone wants a copy -- it basically uses fmt, diff, and less. See footer