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US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

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Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#31

Post by nickff »

dataflow wrote: post #4

Fundamentally, the court seems to be treating this identically to a scenario where the user was ignorant and failed to read their inbox. The court seems to be completely disregarding that it was misdelivered into spam. The word "spam" doesn't even appear more than twice in the ruling (one of which is in an irrelevant footnote)! Why the heck is the court completely oblivious to that fact when weighing the facts on eac…

Unless the user’s e-mail was controlled by their counter-party, what folder the message ended up in seems to be irrelevant to me. The user is the one who selected the e-mail inbox service provider, and has some degree of control over message categorization.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#33

Post by kubb »

jmward01 wrote: post #28

Hm. It seems that use actually goes two ways. They continue to use my information even when I leave their platform. Does this mean I can email info@google.com updated TOS, since I am a party to it I guess, and if they keep selling my info they accept it?

No, you don’t have the means obtain a similar ruling from the court.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#34

Post by soganess »

Is this panel (Gould/Clinton, Nguyen/Obama, and Bennett/Trump) a standard pull for the ninth? Considering how many judges are in the ninth:

> https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...

It seems less likely to (randomly) have the same panel on two higher profile cases so close to each other:

> https://courthousenews.com/ninth-circuit-keeps-block-on-dhs-...

So I'm wondering if it is some procedural thing I am not privy to?

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#35

Post by close04 »

bradley13 wrote: post #24

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option. I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can…

But the “initial” T&C allows them to cancel your contract unless there’s a minimum contractual period. They can take that opportunity to force you into a deal change. The change is that now just using the service is considered consent.

The real problem is that the law allows this power imbalance and doesn’t tip the scales to even it out for the end user. That for me is evidence that the law is made for the companies (probably by the companies too).

I have the same in the car. Been postponing for 2 years now.

I wonder if this can be weaponized by users too (probably no legal basis for this), just send them a new T&C again and again and say delivering the service is consent. Force the companies to say the quiet part out loud: users are not allowed to have the same liberties as the company.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#36

Post by [deleted] »

handoflixue wrote: post #29
bradley13 wrote: post #24

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option. I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can…

If you decline the new contract, you're entirely welcome to continue on the old T&C. Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke. Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too. So, right there, you've already explicitly agreed to a con…

[deleted]

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#39

Post by qnleigh »

handoflixue wrote: post #29
bradley13 wrote: post #24

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option. I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can…

If you decline the new contract, you're entirely welcome to continue on the old T&C. Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke. Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too. So, right there, you've already explicitly agreed to a con…

> If you decline the new contract, you're entirely welcome to continue on the old T&C.

I think the point of contention here is that in practice, there is no way to continue on the old terms of service/contract. Suppose you're using a note taking app, and one day they update their terms of service to say that they can use your notes to train their AI. "Continued use implies consent," so you are locked into the new terms of service unless you stop using the app right then and there. You are not afforded the opportunity to decline the new terms of service and continue on the old ones.

Re: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]

#40

Post by shakna »

handoflixue wrote: post #29
bradley13 wrote: post #24

IMHO the problem is allowing changes to terms and conditions for existing contracts. If I have a contract with a company, that contract was made under existing T&C. The company should not be able to change those conditions without my explicit permission. Denying me service if I disagree should not be a valid option. I get this periodically on our overly-computerized car: Here are new T&C, click yes to agree. You can…

If you decline the new contract, you're entirely welcome to continue on the old T&C. Worth noting, the old T&C you agreed to probably include a clause where either party can unilaterally terminate the agreement for any reason, which they can then invoke. Also worth noting, the old T&C you agreed to probably included a clause about these sorts of updates, too. So, right there, you've already explicitly agreed to a con…

Clauses existing, have very little to do with it being enforceable.

Vader might say he can change the deal at any point, but consumer law generally requires that what is purchased reflects what is advertised.

If you don't agree to a new set of terms, because the service is changed from what you purchased, then both parties generally should still be party to the previous.

Notification alone, is not enough. Agreement is required.

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