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

[Dan L. Burk]

Hi Charles -- 

I hesitate to generalize here, because there are literally treatises on
this topic.  But I think the best summary might be that there are
opinions that hold that some terms of service are not necessarily
enforceable in some situations. 

That of course means that the converse is also true, which is that most
cases hold that most terms of service are enforceable in most
situations. 

Again, at the risk of oversimplifying, one might characterize the
decisions by saying that terms of service seem least likely to be
enforceable where they attempt to waive or evade some type of protection
that consumers are guaranteed under consumer protection laws.  This
seems more likely to be the case in the EU, where the Consumer Rights
Directive and other measures are taken far more seriously than the
fairly anemic consumer protections typically available in the US. 
California consumer protection is a little more muscular than most
states, but even here I would generally assume that a ToS is likely to
be enforced in the majority of instances. 

I am not sure that helps much with the question of fake profiles, unless
there is some provision in Norway that guarantees a consumer right of
anonymity/pseudonymity that would trump contractual provisions to the
contrary -- I know almost nothing about Norwegian law, and am not even
very good at keeping track of the pieces of EU regulation that Norway
has agreed to abide by. 

As I think someone in a previous response indicated, what you may have
heard about is the CFAA decision that is summarized by EFF here
https://www.eff.org/deeplinks/2018/01/ninth-circuit-doubles-down-violating-websites-terms-service-not-crime
  But I don't think that has much to do with your question, which seems
to be about contractual obligation rather than criminal liability. 

Cheers, DLB 

On 2018-04-06 23:51, Charles M. Ess 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>
> 
> Postboks 1093
> Blindern 0317
> Oslo, Norway
> c.m.ess at media.uio.no
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-- 
Dan L. Burk
Chancellor's Professor of Law
University of California, Irvine
++++++++++++++++++++++++++++++++
2017-18 Fulbright Cybersecurity Scholar