Few things are more common on the Internet than the lengthy, largely incomprehensible, online contracts that are often buried at the bottom of web pages with a simple link to “terms”. These agreements sometimes run dozens of pages if printed out and invariably transfer all responsibility and liability to the user, while selecting a jurisdiction clause that is advantageous to the website and inconvenient to most users.
Consumers agree to these contracts dozens of times each day (sometimes proactively by clicking that they agree and most other times by impliedly agreeing to the terms by using the website), but the enforceability of all the terms within the agreement remains an open question.
The law has removed most uncertainty about whether an electronic contract can be enforceable – it can – but ensuring that the form of the contract is valid does not mean that all of its provisions will be enforced by a court. My weekly technology law column (Toronto Star version, homepage version) notes that last month, a Quebec court provided an important reminder that some provisions may not be enforced, as it rejected eBay’s standard terms which require all disputes to be adjudicated in California.
The Quebec court was not impressed, noting that the eBay agreement was over six pages of dense text with “a large number of conditions and restrictions stacked on top of each other in language that is difficult to understand.” The jurisdiction clause was located at the bottom of page five, leading the court to wryly conclude that for a user with very good eye sight and lots of patience and determination, they will find the provision stipulating California as the forum for disputes.
The court suggested that the choice of California appeared to be an attempt to dissuade potential litigants from proceeding with their action, noting that using Canadian law as the governing law but California courts as the jurisdiction for disputes was inserted to “prevent, deter, and void” any appeal against eBay.
Given the court’s discomfort with the eBay agreement, it concluded that the California jurisdiction provision was “excessive and unreasonable” and therefore void. The decision allows the two students to continue their action against eBay in the Quebec courts.
The ruling runs counter to earlier Canadian cases that have generally granted considerable deference to freedom of contract and the ability to enforce somewhat onerous jurisdiction clauses.
For example, one of the first e-commerce cases in Canada involved a lawsuit against Microsoft, which at the time was offering Internet access services. The lawsuit was launched in Ontario, but Microsoft’s electronic user agreement included a provision stipulating the State of Washington as the jurisdiction to settle disputes.
An Ontario court upheld both the contract and the provision, warning in a 1999 decision that failure to enforce electronic contracts would “lead to chaos in the marketplace, render ineffectual electronic commerce and undermine the integrity of any agreement entered into through this medium.”
Those concerns may have been valid when e-commerce was just getting started, but years later the Quebec decision suggests that e-commerce is also dependent upon fair contracts that grant a genuine ability to pursue legal action in the event of a dispute.
Another case of business lording over the consumer.
I think the whole practice of long, difficultly worded online agreements should be drastically reworked. I ask you honestly … how many such agreements have you not just clicked through in the past year?
I expect none.
If we all did stop to read just one of those agreements per year the lost productivity is said to be up to a third of a TRILLION dollars: http://arstechnica.com/tech-policy/2008/10/study-reading-online-privacy-policies-could-cost-365-billion-a-year/
And that’s just once year folks! I contend that this practice is so onerous that it is illegitimate, and though it has been mostly upheld by the courts it is good to see in this instance it has been recognized as a problem.
The question then begs, what is the alternative? Perhaps a short bullet point of the main features of the agreement up front in plain language? Or a legislated standard agreement for various situations be put in place so loopholes could not be place on page 26?
Something needs to change.
Correct me if I am wrong but wasen’t contract law a provincial jurisdiction? Therefore the law of Quebec applies over the law of Ontario in this case since both users are in Quebec… And if I recall contract law in Quebec voids jurisdiction clauses if it tries to undermind a user’s right.
(As far as adhesion contract goes at least)
Those electronic contracts are simply not honest contracts the law is wrong to enforce them as they are and should require companies to form real contracts which include actual understanding and agreement, not overwhelming garbage, and automagical agreement, which, if even if there was real agreement, would probably have been under duress. You paid 300$ for your playstation? well.. agree to all our terms or you can’t use it, but maybe if you are lucky you can return it. However, if you were to hypothetically actually read, understand and agree, then 4 months go by and: “We are altering the deal. Pray we don’t alter it any further.”
Seriously, the “contracts” are totally dishonest.
until I saw the check which was of $4761, I didn’t believe …that…my best friend actualy bringing in money in there spare time on their laptop.. there best friend has done this less than twelve months and resantly cleared the morgage on their appartment and bourt Chevrolet Corvette. this is where I went,
The online terms and conditions for most if not all websites are not fair and are completely one sided, favouring the business. Any reasonable judge knows that 99% of consumers do not read these, or completely understand them.
For myself, I rarely read them as I know that these are completely one sided contracts that strips any of my rights. I’ll use whatever online services as I see fit, whether or not it complies 100% with these unfair terms and conditions.
How about turning it around on them? You can change your browsers’ UserAgent to contain”MyWebBrowsingConditionsApply” which basically say that you denounce any kind of implied “agreements” and that they should block your UserAgent string if they do not agree with you accessing their site on their own terms. If they still let you in that means that the revised conditions are acceptable.
Thank you for sharing such a useful post about eBay’s Online Contract. It is very informative & great post!
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