The “terms and conditions” reckoning is coming, Bloomberg Business reports. New European Union privacy rules go into effect in May. They require among other things much less opaque end user agreements. This combined with the backlash against Facebook for the misuse of data by Cambridge Analytica and some recent, specific actions by companies like Paypal could signal the beginning of the end of “clickthrough” agreements.
It’s axiomatic in contracts law that for an agreement to be enforceable, there has to be evidence that both parties understood the terms and agreed to them. In a majority of cases, this evidence is a signature on a document containing the terms. “Clickthrough” agreements rely on the fiction that clicking “I agree” is evidence of having read and understood the terms you are ostensibly agreeing to. (“Clickwrap” agreements rely on a user having continued using a product or service after having supposedly had the opportunity to stop, and are on even shakier legal footing.) But that fiction is already under assault in the new EU rules, which signal that if a typical user wouldn’t understand the rules, companies can’t rely on their having supposedly consented to them.
The next logical step after trying to figure out what a “typical” user would understand is requiring better, clearer evidence of having read and understood terms. While this sounds like a good idea, it would mean users would actually have to read and understand end user agreements before they could use the associated product or service. There’s no question that the “by clicking I agree…” fiction greases the skids of modern online commerce. Today a world where users have to actually read and understand terms is more imaginable than it’s ever been.