did you consent because you could have seen a poster?

Question

Instead of a signed release, in recent years I'm seeing posters saying that if you walk in an area you consent to the commercial use of your likeness for unlimited purposes without payment. At least once, I've seen this on a public sidewalk, it wasn't clear where one might walk that would be subject to this release by poster, and the release purported to apply to unaccompanied minors. The language was written the way lawyers write. If the company was smart, they had a video camera to record who saw the poster in case of a lawsuit later, but I doubt most of the companies bother. No one talked to me about it. Since a person reading the poster and walking in the intended area does not thereby receive consideration, there is no contract.

I wonder if this has wider implications. Suppose I have a house for sale and it has a walkway to the front door. Could I put up a poster saying that if you walk on the walkway you bought the house, including a mortgage with an interest rate I set, and would the poster be binding? Could I create a website offering website design services with my email address and say that if you email me that constitutes your buying my high-end service as soon as I access your email? Could I paint a poster on the side of a truck with a camera and photograph two million people and say that here are two million identifiable people every one of whom loves my brand of soda and urges you to buy a case? Suppose a park is frequented by published writers, musicians, artists, and inventors of some repute; could I put up a poster by which I acquire all of their intellectual property because they happen to be in the park? The possibilities of consent by poster seem infinite.

Or, although I've seen posters like this for at least 5-6 years (one back then was in a business location open to most of the public), has this never been tested in court and is the poster system probably not a valid substitute for a signature, even for mentally competent English-fluent adults not in a rush and allowing that certain contexts wouldn't allow it (e.g., civil court settlements and plea bargains couldn't rely on the poster system)?

Or if you didn't have a reason to read the poster (surely no one has to read every writing that's visible) and simply walked through the area in question without reading it you're not bound by it but someone who did happen to read it must accept its terms?

If the geographical boundaries are unclear so that reading the poster gives you no clear remedy by walking away, does that change the law on the validity of consent by poster?

Website terms often say that using the website constitutes consent to the terms and often reading the terms to discover this requires using the website before you start reading, but I doubt that's legal consent, but maybe consent will be found after you've read them and didn't try to revoke consent, e.g., by not using the site any longer.

In the United States, this all might well vary by state and may depend on common law.

Answer 1

I gather that the numerous ramifications you outline are merely contexts and that your main concern is about the application of contract law (contract law in the U.S. does not really vary among states). Thus, I will not really delve in the intricacies of --for instance-- privacy or copyright issues arising from the commercial use of a person's likeness that you mention in one of the scenarios.

As a starting point, one needs to bear in mind that:

1. a contract is an exchange of considerations under terms and conditions entered knowingly and willfully by the parties, which can be evidenced by the parties' subsequent conduct (that is, not just by signing a document); and

2. a contract is unenforceable if it contravenes public policy and/or the covenant of good faith and fair dealing.

Accordingly, the questions are (1) whether a person knew or reasonably should have known about the terms & conditions at or by the time of those events which trigger obligations pursuant to the contract; and (2) whether the provisions therein are unreasonable, illegal, or tantamount to a penalty, especially in the event that the party breaches or repudiates the alleged contract (see the Restatement (Second) of Contracts at § 356(2)).

The scenario of house for sale entails various difficulties as per contract law and otherwise. Here are some of those issues:

• Are visitors properly (including "beforehand") notified about the "walkway clause"? If not, the contract is void because it cannot be said that visitors knew about & accepted that condition.

• Does the house provide alternatives for lawful & informed visitors to safely avoid the walkway? If not, then the seller/owner might end up incurring premises liability with respect to those visitors who get injured in making their reasonable effort not to trigger the "walkway clause".

• Is the house owner realistically able to prove that use of the walkway by lawful & informed visitors is sufficiently "inconsistent with the offeror's ownership of offered property" so that triggering a house sale is a reasonable consequence (see Restatement at §69(2))?

• Is the owner-imposed mortgage rate compliant with state law pertaining to granting of credit & loans?

These exemplify only some of the burdensome complications when trying to enforce "contracts" which are extravagant or quite one-sided.

Lastly, as a side note, the presumption that

a person reading the poster and walking in the intended area does not thereby receive consideration

is not necessarily accurate. As an example, the "intended area" could have been devised by an entity in the business of enjoyment and recreation, such as a private park. The person who deliberately walks in (regardless of whether he read the poster) certainly receives a consideration, which is the amusement or recreation for which the park was designed.

Answer 2

Did you consent because you could have seen a poster?

Broadly speaking, yes - but its unlikely that what you consented to was a contract.

Conditions of Entry

The posters that you describe are more likely to be conditions of entry rather than terms of a contract. The controller of premises is entitled to restrict access to that premises and impose conditions on those who are given permission to do so.

These are unlikely to amount to a contract (See What is a contract and what is required for them to be valid?). However, consideration is not an issue - allowing you to enter is valid consideration. The reason that it does not amount to a contract is due to a lack of intention to create legal relations on your part and clear indication of acceptance, also on your part.

However, if you breach the conditions of entry then you are on their premises without permission i.e. a trespasser and they can require you to leave forthwith.

Contract Terms

Such posters can amount to a contract where they are used in a way that ensures there is a clear acceptance by the reader.

For example, terms on a poster displayed at the entrance to a paid parking lot do form a valid contract if they are displayed in such a way that a reasonable person could not fail to see them and the person is giving the option of rejecting them by being able to immediately drive to the exit and leave without paying. The same applies to terms and conditions printed on the back of the ticket.