Can we write anything in a Terms & Conditions agreement?

Question

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.

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.

Answer 2

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.