On­line terms and con­di­tions: The le­gal rights killer?

Nairobi Law Monthly - - Analysis - AN­THONY MU­TUNGA

“By read­ing this ar­ti­cle, one agrees to the fol­low­ing terms and con­di­tions (T&CS) which I stip­u­late one has to ad­here to, a) in the pres­ence of oth­ers, one will have to ad­dress ev­ery­one else only by their first names and noth­ing more; b) one has to give me (the writer) what­ever they have in their pock­ets at the time of im­pact. By the fact alone that you read this ar­ti­cle, un­der the law you are re­quired to fol­low th­ese terms...”

This is un­fair, right? Well un­fair or not, if this was an on­line plat­form, and you agreed to the terms and con­di­tions be­fore open­ing and read­ing this ar­ti­cle, you would have to ad­here to them. This is more or less an ex­am­ple of how we care­lessly agree to on­line T&CS or end-user li­cense agree­ments (Eula) with­out read­ing them, not know­ing it is a le­gal con­tract. For ex­am­ple, re­cently a friend of mine was book­ing an air­line ticket on­line and she was asked to click ‘I agree’ if she ac­cepted and agreed the firms’ T&CS; with­out both­er­ing to read even one of them, she clicked yes.

On the day of the jour­ney, she failed to make it to her flight in time and af­ter ask­ing to be re­funded or her flight changed, she was re­funded half of what she had paid. When she com­plained to the com­pany, she was di­rected to the T&CS she had agreed to, whereby, there was a clause stat­ing that what the firm did was en­dorsed by her when she agreed to the T&CS. The ques­tion arises whether it legally al­low­able for the firm to act as it had done.

We all at one point or an­other been asked to ac­cept some terms and con­di­tion as part of an on­line trans­ac­tion ei­ther when open­ing a new so­cial me­dia ac­count or just try­ing to get to your bank state­ments on­line. This is more or less a form of an on­line con­tract which, like a nor­mal con­tract, is a bind­ing be­tween two par­ties. In on­line con­tract­ing, there is in­cludes the likes of click wrap con­tracts and browse-wrap con­tracts, which bring up fun­da­men­tal ques­tions when it comes to ac­cep­tance of con­tracts.

Click-wrap con­tracts in­volve a re­quire­ment by the user to agree to some terms and con­di­tions be­fore the trans­ac­tion con­tin­ues, af­ter agree­ing with the in­stal­la­tion pro­ceeds or user gains ac­cess to the web site. On the other hand, browser-wrap con­tracts are where the user vis­its a web­site with terms and con­di­tions on it that im­pli­cate a bind­ing com­po­nent when­ever one uses its ser­vices.

With the world mov­ing into the dig­i­tal era, every­thing is mov­ing to the on­line plat­form, and on­line con­tracts are be­com­ing more com­mon. One al­most can­not visit a web­site to­day with­out even­tu­ally be­ing asked to agree to a listed set of T&CS, but it is ev­i­dent that not many peo­ple ac­tu­ally read and un­der­stand th­ese le­gal con­di­tions.

Why do most peo­ple al­ways end up ig­nor­ing the terms and con­di­tions or end user li­cense agree­ment they agree to on­line al­most ev­ery day? Is it even pos­si­ble to read the T&CS for every­thing a typ­i­cal per­son does? Is it re­ally im­por­tant for one to read th­ese terms and con­di­tions? Re­gard­less of this, a con­clu­sion can be reached that the big­gest lie on the In­ter­net nowa­days is: “I have read and agree to the terms and con­di­tions.”

It is quite per­spic­u­ous that pri­vacy on the In­ter­net is usu­ally not pri­vate as one thinks, as some terms of ser­vice that peo­ple ig­nore to read have clauses that give them the right to have ac­cess to ones in­for­ma­tion. For ex­am­ple, ev­ery­one who uses Face­book is a vic­tim of pri­vacy vi­o­la­tion. Face­book, in its terms and con­di­tions, has

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