Wednesday, February 9, 2011

CLICK HERE TO TRANSFER YOUR SOUL – what have you agreed to online?

The law. It has an impact on you. So what’s the problem? Well, what if you don’t know it’s affecting you? What if you are somehow bound by terms that you don’t even know exist?                                     

There are not many places in society where you can become legally bound simply by engaging in a conversation. Unfortunately, social media sites are the exception. How? Because like it or not, you’ve entered into a contract.

Hang on… I didn’t sign anything! Alright, chill out, I’m your friend, remember… Allow me to explain.

Remember when you first checked out Facebook, Twitter, LinkedIn, Myspace, Flixster, Youtube, Bebo (the list goes on…)? You wanted to check out your friend’s photo/status/blog but it said you needed a login to access the content, so you typed in your name/email/password and (in a hurry) ticked the box that said c I have read and agree to the terms and conditions of this site. In fact, on some social media sites you may not have even needed to tick a box. The new Facebook, for example, uses the phrase By clicking Sign Up, you are indicating that you have read and agree to the Terms of Use and Privacy Policy.” By ticking the box/clicking ‘sign up’/entering the site, you have just agreed to be bound by the terms and conditions of the site; and you know what that means? You are in a contract.

Don’t remember signing anything? You didn’t need to, it’s called acceptance by conduct. It’s existed for many years in common law jurisdictions (such as the USA, Australia and the UK) and is an accepted fundamental of contract law.

Let’s use an example: You’re a builder. Say a landowner comes to you and asks you to build her a new home for $1 million dollars. You’re so excited you don’t even say ‘Yes,’ you just get straight to building, on her land, and she’s stoked that her new home is underway.[i] By building, you are signing. It’s the same idea with social media.

So, hang on, if it’s a contract, can I negotiate the terms? Hahahahahaha, don’t be silly (sorry about the excessive laughter)… these guys are running a business. If you don’t agree with their terms, feel free to not use their site. In 2010 Social media made an estimated $US935 million, a figure expected to grow to upwards of $US3.1 billion by 2014 (http://on.mash.to/ffzBsk). This is BIG business. And they make the rules. 

So are the rules unfair? Maybe. But hey, it’s not personal. You don’t want to play by their rules? You might just have to pick a different sport.

Well then, what unfair terms have I agreed to?
There’s no telling really. If you don’t read the conditions of your contract, you may be bound by any number of terms that you aren’t aware of. In fact, you could have just transferred the legal ownership of your soul. Hey, it’s been done before: (http://fxn.ws/gwMGkH)

In 2010 a UK computer game retailer decided to change their Terms & Conditions to include an ‘immortal soul’ clause, you know, just for a bit of April Fools fun (I guess?!)… Over the next few days any orders placed online were asked to agree to the new terms & conditions of the site, which included a clause agreeing to effectively transfer the soul of any purchaser to the gaming company, for eternity. Within a few days they had legally acquired over 7,500 souls. They even reserved the right to give their notice in 6-foot high letters of fire, but refused to be held liable if that fire happened to cause injury to person or property (how typically legal of them).

Luckily, the company came out to say they would not be enforcing their newly acquired rights over the thousands of innocent (albeit, lazy) shoppers. Lucky indeed.

It does make you think though, what have I agreed to by simply not taking the time to read a few pages?

The point is, you can transfer just about anything through written contract, and if you don’t read the contract, how will you know the terms to which you are agreeing?

Please, please, please read the terms. Who knows, by doing so, you may just save your soul.


[i] Now, please don’t complain that I’ve forgotten about the requirement for building contracts over $1,000 to be in writing (under NSW law), or the array of conveyancing/planning laws of which this scenario is in breach… As a general principle it works, just go with me here. 

2 comments:

  1. Excellent stuff - thanks for informing me...I will be more careful!

    ReplyDelete
  2. A salutory lesson that technology is way ahead of law !

    ReplyDelete