1

I'm wondering if anything can be written in Terms & Conditions agreements and, if some rules apply, what are they (preferably in the EU)?

There's this famous South Park episode HUMANCENTiPAD where characters agree EULA without even reading them and end-up in a really bad, but legal, situation.

This example is of course exaggerated but let's say there's a Free Wifi somewhere and connecting to it shows me a page where I have to accept Terms and Conditions to be able to access the whole web.

Can they legally write some terms like spying on user's traffic, reading messages, save credentials for later use, etc.?

Or are these kinds of terms abusive, thus wouldn't legally be valid in such agreement?

If they're considered as abusive, where are the rules defined to flag a clause as such?

Thanks for your answer.

1

You cannot contract outside the law

Generally parties are free to contract on any terms they like but the contract must have “legality of objects”. So, hiring a “contract” killer does not create a contract and no court will force you to pay your contract killer. Of course, if you don’t pay your contract killer you have bigger problems than legal issues.

Further, individual terms must be lawful. Unlawful terms may void the contract totally although courts prefer to enforce the bargain as far as they are able to so they will usually sever those unlawful terms, that is, read the contract as though those terms don’t exist.

Terms can be unlawful for all sorts of reasons.For your example, the GDPR limits when and what personal data can be collected without consent. You can consent to give any personal data but the business must have a legitimate reason for wanting it related to the service provided.

Further reasons terms can be unlawful include:

  • they are unconscionable
  • there is a consumer protection law that renders unfair terms void
  • they are meaningless
  • they attempt to exclude the jurisdiction of the court
  • they attempt to limit liability in an unlawful way
  • they attempt to exclude non-excludable statutory warranties
  • they purportedly impose obligations on third-parties to the contract (only a party to the contract is bound by it)
  • they contradict any other law.
|improve this answer|||||
1

As a general rule, you can't make a contract with another party if either party is required by the contract to perform an illegal act. Beyond that specific clauses are typically determined by the courts to the reasonable person understanding of the clause. In dispute of meaning, most courts will side with the means that causes the least amount of harm to the parties in dispute.

Specifically related to computer and internet terms of use, there are valid reasons for some level of monitoring, such as monitoring traffic over the network using user metadata (If you're not sure what metadata is, I like to explain it in terms of snail mail. Every nation has a postal system through which one can send data (in the form of letters or packages). The information required by the postal system to work is written on the outside of the envelop or box and the contents are placed on the interior. Metadata would include the "outside" data going over the network (the name and address of the recipient and possibly the sender)... and will be used by postal workers to get your package to where you need it to go.) and the postal system will monitor this not only to ensure the system does what it does, but to ensure that they can identify areas where service is out so they can correct the problem or even ensuring that the system is running efficiently. This occasionally is done by selecting randomly some users and watching how their packages move through the network.

Now, it's also a matter of fact that people will ship contraband through the mail. It may be illegal for the post to ship material because it's hazardous or banned, so there will be procedures to "open" packages and look at the contents if there is some level of suspicious activities.

|improve this answer|||||
  • So theoretically a Free Wifi with some terms saying they can inject extra advertising in web pages or even saying they can spy users in order to inject relevant ads would be legal right? I'm wondering because I never read Terms & Conditions agreements and I'd like to understand what are the risks I'm exposing myself to when connecting to a Free Wifi. Do I risk my data being stolen? (in a legal way, because it can always be illegally stolen anyway) – Jérôme MEVEL Dec 6 '19 at 15:47
  • @JérômeMEVEL Generally, Free WIFI isn't built on advertisment, but your continued use of other services of the venue providing it. For example, Starbucks offers free wifi cause people surf the internet for long periods of time, and they hope you'll buy a coffee or two. They tend to redirect you to pages where you can sign on which have advertisements. Typically automatic connections are saved by your device, not the wifi.+ – hszmv Dec 6 '19 at 16:00
  • @JérômeMEVEL: An online site with ads tend to use directed ads to tailor ads to you based on recent cookie activity. If on Amazon you buy the complete Harry Potter books, the next time you go to Amazon, it might recomend Lord of the Rings or Twilight. This is because a cookie was made by Amazon and saved to your browser or account about the recent purchases. This data is then run against all other users to find common products purchased by people who bought the same items. If it's browser cookies, you can disable cookies (passwords are saved the same way, so careful)+ – hszmv Dec 6 '19 at 16:04
  • Thanks again but this doesn't answer my question. Is the scenario I described legal or not? (Note that I'm a software developer) – Jérôme MEVEL Dec 6 '19 at 16:07
  • @JérômeMEVEL: If account cookies, it's going to be tied to your account, so you shouldn't see it when logged out. Since I've had to code cookie generation, I can say that it's rather hard to find important data from cookies and you need to go looking for it to be sure. – hszmv Dec 6 '19 at 16:08

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.