humani nil a me alienum puto

random rants about news, the law, healthcare law, economics and anything I find amusing

Reading the Fine Print

Do you actually read all the click through contracts?  Do you read the privacy policies?   When I went to test drive a car recently I signed a waiver of liability that had typos and grammatical errors.  One actually read to make the dealer liable when it was clear they wanted the driver to be liable.  I pointed them out and was told that I couldn’t drive the car if I made any change to their form.  This was by the same guy that asked if I could afford the car I was test-driving.  I grinned and signed it.

But this one takes the cake.  Fail to read the UK’s Gamestation terms of service this past April 4, 2010, and you might have sold your immortal soul.  Ok – maybe not.  I think I could nullify the contract for you.  (And Gamespot later did waive any enforcement of this provision – nice guys).  But here’s the full text of the contract.  Here’s the provision:

By placing an order via this web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions. We reserve the right to serve such notice in 6 (six) foot high letters of fire, however we can accept no liability for any loss or damage caused by such an act. If you a) do not believe you have an immortal soul, b) have already given it to another party, or c) do not wish to grant Us such a license, please click the link below to nullify this sub-clause and proceed with your transaction.

They allowed customers to click to remove this provision.   So, what’s going on here?  A little social experiment.  Nearly 90% of those entering into this click-through agreement failed to remove the provision (and received a rebate voucher).   Amusing in the specific, disturbing more broadly.

ADDENDUM:  After thinking about this, perhaps this is not so surprising.  Generally, people know the terms and conditions for most online sites are adhesion contracts.  Either you agree to them (excepting only the check-out box regarding what types of communication you might receive) or you do not use the site.  The economic stakes are, perhaps, low.   Customers make the implicit calculation that there’s nothing in the fine print that’s going to raise the economic cost of the underlying service to a point that the service would not be worth it.  Those that are particularly sensitive about privacy issues will look closely and may decide the service is or is not worth it, or look to other providers if those provider’s terms are more to their liking.   But most of us just click through.    For bigger economic arrangements, such as buying a house or entering into a morgage or purchasing a car, one would expect consumers to actually take the time to protect themselves by reading the contracts (or hiring an attorney) since the stakes of those terms may be much more important to the transaction.  Maybe not, considering the role of mortgages/housing purchases in our current economic troubles.

It seems that sometimes this is not a good thing.  If someone does not even read the terms, there could be something that would raise the economic cost to a point you would not use the service.  Recent examples may be the ‘games’ on Facebook and terms requiring you to purchase other services (or needing to affirmatively opt out not to be charged for those other services) in undisclosed or unappreciated tying arrangements.  See for example Farmville.  In any event, as always, buyer beware.

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Filed under: Personal Posts

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