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Suppose an American company wishes to do business with European parties. Could their terms of service say that as a user of their services the user forfeits any rights afforded to them by the GDPR and more importantly how would European Union courts and American Courts see this clause?

Also can the Terms of Service say that if "You" are from any country in the European Union, do not continue using the services of the site? If this is done and someone from the European Union still uses the site, does that then legally negate the GDPR rights afforded to them?

Just want to note that I think the GDPR good thing and I'm doing everything I can to comply with it, but I'm also structuring everything as defensively as possible.

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It is not possible for someone to forfeit their rights because the GDPR is compulsory law.

In the EU, laws can be regulatory or compulsory.

  • In case of an agreement, regulatory laws can be set aside, if both parties agree on that.
  • But compulsory laws cannot be set aside.
  • Of course laws can also be partly compulsory. For example provisions which cannot be changed in disadvantage of a consumer.

So there is freedom of contract, but it's freedom is reduced by law for the common good or for example to avoid misuse of bargaining power.

In particular consumer related laws are often compulsory because it has little power against the other parties. Companies can have their negotiations done by lawyers, so they can make a well informed an well negotiated decision.

As an extreme example, you cannot kill someone, even if that person has given you written permission. See also "Peremptory norm" on wikipedia for international law examples.

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Contracts cannot override the law. If it were possible for a contract to negate any and all laws that the drafting party didn't like, there would be no point in much consumer or general protection law at all.

It is possible to say that you will not serve customers from the EU, but having done so without knowledge, you're still obliged under EU law to adhere to it, unless and until you remove the customer and any information you can't keep from your system.

  • Interesting ... I've seen clauses in terms of service that say something like "If you are from california you specifically waive the right to blah blah blah .... are these types of clauses just garbage or perhaps usable in the US but not Europe? – Ole Jun 2 '18 at 23:55
  • Also this is not really negating the law. What this is saying is that if you are from the EU, don't use the service. If the person still uses the service, then the person is violating the Terms of Service ... so who is right in this case? – Ole Jun 2 '18 at 23:58
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    In that case you need a lawyer. The breach by one party doesn't give all the other parties free reign to ignore the law. It happens that some jurisdictions allow some rights to be waived - the right to government trial as opposed to arbitration is one of the noteworthy ones. It doesn't mean that you can waive every right or that a given right is waivable in every jurisdiction. – Nij Jun 3 '18 at 0:45
  • Interesting - Thanks for clarifying - I asked a follow up question here as well as it would be nice to have more clarity on the basics: law.stackexchange.com/questions/29164/… – Ole Jun 3 '18 at 0:48
  • I guess perhaps pool analogies would be applicable. For example if you build a pool in your back yard and have a fence put up, you are still liable if someone breaks into your backyard and drowns in the pool ... in most places I think ... so you need pool insurance etc. – Ole Jun 3 '18 at 0:50

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