It is past time to start awarding prodigious damages against corporations who egregiously and willfully write unlawful provisions into their terms of use, consumer contracts, etc. etc.
Parsing and correctly interpreting pages upon pages of legalese presents an undue burden on a well functioning market economy. Corporations can slip clauses into agreements that can give them vast power over their customers who do not understand the full ramifications of what they are agreeing to. There is very little cost involved to the corporation that tries to get away with this. There is a very great cost to our society in tying up our court systems with stupid crap such as this.
The only solution is to make the cost of writing illegal provisions into contracts greater to the perpetrator than the potential reward. I know there will be unintended consequences to what I propose. But surely there must be a way to send a stronger signal to corporations who willfully push legal boundaries and seek to obfuscate exactly what it is that consumers are agreeing to?
Unlawful provisions aren't the only problem; what about selective enforcement?
When everyone is a lawbreaker selective enforcement gives law enforcement tremendous power beyond what's written in the law. A similar situation applies to contracts, and contracts for software and services are so impenetrable these days that you're bound to be violating something or other just in everyday use.
There are historical reasons for these provisions though.
Take, for example, the standard UK limitation of liability cut-and-paste block. (About half a page.)
It's that long because there is case history on each point suggesting that if you don't enumerate each of those the conditions separately then you may get nailed for it. And every time there's a new test case that isn't quite covered, the list gets longer.
The only way to correct that kind of mess is through legislation. And there are so many examples of that kind of crufty-for-a-good-reason language that the patchwork would take years to unravel and have many unexpected consequences (not to mention lots of uncertainty until five hundred years of new case law was established).
There are people working on this kind of thing (for example the new companies act, which makes incorporation documents much simpler and removes some of the 'peppercorn and two groats must be thrice weekly burned over a blue flame' anachronisms) but it takes time.
One relatively simple way to do this might be to pass legislation saying that the terms and conditions can only be up to a maximum number of words which must be from a standard dictionary, with no links or supplemental articles permitted. This would encourage companies to be concise with their ToS, and discourage the use of "hidden clauses".
You give us the right to publish your data and you don't have access to
anything else other than what the Facebook UI and APIs provide.
There, problem solved. Of course, writing this in legalese isn't so straightforward ... otherwise legions of lawyers and judges would be jobless. And they wouldn't be able to ban crawlers, other than search-engines ... and where's the fun in that?
Parsing and correctly interpreting pages upon pages of legalese presents an undue burden on a well functioning market economy. Corporations can slip clauses into agreements that can give them vast power over their customers who do not understand the full ramifications of what they are agreeing to. There is very little cost involved to the corporation that tries to get away with this. There is a very great cost to our society in tying up our court systems with stupid crap such as this.
The only solution is to make the cost of writing illegal provisions into contracts greater to the perpetrator than the potential reward. I know there will be unintended consequences to what I propose. But surely there must be a way to send a stronger signal to corporations who willfully push legal boundaries and seek to obfuscate exactly what it is that consumers are agreeing to?