Contracts of Adhesion?
While a contract with no room for negotiation seems unfair, a contract of adhesion will still be enforceable. One of the keys to enforcement when being reviewed by a court is whether there are any unconscionable, hidden, or buried terms in the agreement. That boils down to making each statement known and not trying to hide the ball on the user. Given the prevalence of so-called click thru agreements or agreements through use, how many users have any awareness of the terms that are being agreed to? The answer is likely few if any.
Despite many users not reviewing the terms of agreements like Privacy Policies, there is still a recognizable benefit to enabling agreement through simple use.
Expanding Privacy Concerns
As noted, attention to privacy and the use of data has been increasing as a steady pace over the past few years. The attention resulted in passage of new laws meant to enhance the rights of individuals in their own data. The rights focus on access, determination, and potentially control. The new scheme are a reaction to the proliferation of data and the view that such data were being exploited without an individual having an ability to have a say in that exploitation.
As suggested, the new rights, at least within the United States, are fragmented. At this point in time, there is no overarching federal privacy scheme, leaving the states to adopt patchwork laws that only apply within the boundaries of the state. Suggesting that the rights only exist in a particular state though somewhat ignores that nothing on the internet is so contained. As a result, the most restrictive or proscriptive state law could become a de facto national standard.
A Better Way
What Comes Next?
Continuing to move away from dense, overly complex Privacy Policies could help foster more trust between companies and users. Both sides need each other, so why not be more honest and clear about what is happening. Such an approach is a shift in thinking around how Privacy Policies work. Given the potential upside, how many will make the jump to experiment? That is not known, but hopefully time can be devoted to standard documents like Privacy Policies to move away from the old routine and set a new standard.
This article was originally published on The Pulse blog and is republished here with permission.