Thursday 21 November 2013

Are online T&Cs enforceable?

Thanks to my colleague, Adam Smith-Anthony, who spotted the BBC's recent blog post on online T&Cs.

Some T&Cs are 50,000 words long - that's 20,000 words
 longer than Hamlet.
Which would you rather read?
The question of the enforceability of T&Cs, which often apply to use of a copyright protected work as well as more broadly, comes up time again. See here, here and here for recent posts on the content and enforceability of T&Cs.
The BBC's blog post reports that a woman in the US was asked to pay USD 3,500 for writing a negative review of an online retailer. Her husband had placed an order on He had not received the goods after 30 days so tried, and failed, to get in touch with the company at which point PayPal refunded his money. His wife then posted a review on consumer website Ripoff Report in which she said: "there is absolutely no way to get in touch with a physical human being" and accusing KlearGear of having "horrible customer service practices". A quick search reveals that she is not the only one who has had a bad experience with this company. However, she was asked by to remove her review within 72 hours or to pay a "fine" of USD 3,500 - this they based on a non-disparagement clause in their T&Cs.

The couple refused to pay and now have a black mark against their credit rating. However ultimately did not seek to enforce their T&Cs.
This story illustrates how few people read T&Cs. Those that do wade through the pages of legal jargon are unlikely to change their course of action. On that basis the BBC comments that the playing field is uneven - you either accept or reject T&Cs. This blogger agrees and see this as an indication that we can expect to see a few more cases on the enforceability of online T&Cs in future.


E Derclaye said...

It sounds like stifling freedom of speech. Surely there was no defamation but only a statement of truth. Good to know that we are considering making copyright exceptions imperative like eg in Belgium and Portugal. But surely the human right to freedom of speech should prevail anyway in a case like this?

Hugo said...

But surely the question is much broader than just: "are T&C enforceable?"

I have written on this subject here,

I’d welcome feedback and comments on that.