Earlier quoted context omitted.
He probably has opted in without noticing. Quick show of hands: How reads all ToS that they agree to?
Whatever the fine-print legalities, if you didn't notice, I don't think it can count as opting in.
[1] In Germany, there is a specific section of the public code governing ToS ("AGB-Gesetz", part of the BGB). Among other things, it forbids "unexpected" terms, acknowledging that people usually cannot read all the ToS that they have to agree to in practice. Quite a few ToS have been nullified by courts because of that rule.