[Air-L] Terms of Service not legally binding?

[Lovaas,Steven]

Charles,

Your questions often teach me, because I’m interested enough to go sleuthing. So I assume you’re aware of most of these resources; I include them as breadcrumbs for the interested.

The EFF white paper (https://www.eff.org/wp/clicks-bind-ways-users-agree-online-terms-service) hasn’t been updated in almost a decade, though they have a nice summary of “unconscionability” in online contacts as of 2011 (https://ilt.eff.org/index.php/Contracts:_Click_Wrap_Licenses). The American Bar Association has a paper from 2015 (https://www.americanbar.org/publications/communications_lawyer/2015/january/click_here.html) going into some nice detail of browsewrap vs clickwrap, citing court decisions. Key cases are reviewed here as late as 2016: https://www.google.com/amp/s/termsfeed.com/blog/3-key-legal-cases-on-click-wrap/amp/

This 2016 blog post is the closest I’ve found to an answer to your question:
https://blog.ericgoldman.org/archives/2016/08/anarchy-has-ensued-in-courts-handling-of-online-contract-formation-round-up-post.htm

Best of luck!
Steve Lovaas



Sent from my iPhone

On Apr 7, 2018, at 12:52 AM, Charles M. Ess <c.m.ess at media.uio.no<mailto:c.m.ess at media.uio.no>> wrote:

Dear colleagues,

With apologies for spamming the lists - on behalf of both a student project and our development of further refinements in internet research ethics I'd like to ask the following.

I've heard somewhere recently that a U.S. court has ruled that Terms of Service are not necessarily legally binding.
If anyone can forward more exact details of the ruling, I'd be very grateful indeed.

Why? There is considerable discussion regarding the creation of fake profiles as part of research into social media, algorithms, etc.  I have the impression that this has become common practice, and this ruling may give some direct and/or indirect support to arguments for such a practice.  (With important caveats, generally a good thing in my view, FWIW.)

At the same time, however, Norwegian law and thereby research ethics, as a start, tend to be considerably more strict than the U.S. (and even, in some instances, the E.U.).  I would like to figure out the differences and resulting nuances in the implications for research ethics - both for the sake of the general example and for an MA student project that I have the pleasure of supervising.

Many thanks in advance for any tips and suggestions.

All best,
- charles ess

--
Professor in Media Studies
Department of Media and Communication
University of Oslo
<http://www.hf.uio.no/imk/english/people/aca/charlees/index.html>

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