Member Article

Digital state: How online T&Cs impact law

How much thought do you give to the terms and conditions when you sign up for the latest must-have online service? OK, so that would be ‘zero’, I expect. They’re all the same, and no one reads them. Do they?

The likes of Google, Facebook, Twitter, eBay, and Amazon, along with a host of smaller companies, naturally insist that you, the user, are subject to their terms of use and operational policies. For example, every user grants Twitter what is, on the face of it, unnecessarily wide and unfettered rights to do what it wants with that user’s content.

Amazon’s and Apple’s rules mean that, unlike books, DVDs or CDs, you can’t pass on to anyone else the iTunes tracks or Kindle downloads you’ve paid good money for. This causes problems on divorce and death, and more mundanely, if you’ve simply finished with the item in question and want to give it to a friend. YouTube’s policy is to remove offensive footage reported to it, but it is YouTube’s employees who decide what’s allowed, who act as our censors.

Even if someone (like me) bothers to read the small print, and is able to understand fully its implications, there is little I can do beyond putting up with them, as a refusal to click the ‘I have read and agree to’ button results in me being denied any access at all. The sheer scale and ubiquity of use of these services means that, in a very real sense, their policies have become The Law for hundreds of millions of users worldwide.

This is interesting, and, perhaps, disturbing. It may even strike some people as the beginning of an insidious undermining of how law is supposed to be created and enforced: with due process, consideration and respect for democratic principles.

As a lawyer, my legal auto-pilot naturally nudges me towards this last point of view. But this instinctive reaction would be too narrow-minded. Yes, companies’ terms and policies are often heavily biased in their favour, can change with inadequate notice, and show scant regard for users’ privacy. But remember that it is early days: even the largest online behemoths are not long out of their infancy, and are still feeling their way. As they grow, the pressure on them to do the right thing mounts, not least because of the intense scrutiny of the geeks, and the resulting instantaneous and widely-disseminated critical feedback that meets any policy changes.

So, whilst we should be ever-vigilant and make lots of noise when they get things wrong, we should keep the bigger picture in mind and applaud the better aspects of online companies’ policies and the way they are implemented in practice. The best are practical, pragmatic, and straightforward for the user to understand and access. Which is more (much more) than can be said for many of the traditionally-created laws that lawyers and their clients spend so much time wrestling with.

Tamara is the legal contributor to the soon-to-be published book, ’Digital State: How the Internet is Changing Everything’. written and edited by Simon Pont. The book will be released in the UK on 2nd June.

This was posted in Bdaily's Members' News section by Tamara Quinn .