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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]

#401

Post by thaumasiotes »

dataflow wrote: post #307
thaumasiotes wrote: post #51

Earlier quoted context omitted.

> The court seems to be completely disregarding that it was misdelivered into spam. Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox".

> Spam categorization isn't a delivery issue. The delivery is the same whether you, upon taking delivery, toss the message into a bin labeled "spam" or one labeled "inbox". You think she marked it as spam before reading it rather than the courier?

I know that's what happened. The courier isn't capable of marking it at all.

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

#402

Post by DannyBee »

cogman10 wrote: post #131

It's a bad ruling. By it's logic, McDonald's can mail me a contact where they take my car if I eat at their restaurant and all disputes go to their arbitration court, and I agree to the terms by ordering food from them. It's really no different. In fact, in some ways it's worse because McDonald's can send the contact via certified mail. These courts just want to clear their dockets which is why they reversed.

Did you read the case at all?

It is a totally reasonable discussion of what assent entails, is clear that assent only exists when people actually read the notice, and placed the burden on the companies, etc.

One can disagree with the law at issue here, but the court was very carefully following it, and had a meaningful and thoughtful discussion of the issues involved.

Which you dismiss as just "trying to clear their dockets" because apparently you don't like the law as it is (which is cool, but not the courts job)

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

#403

Post by DannyBee »

cogman10 wrote: post #390
cvoss wrote: post #385

Earlier quoted context omitted.

> These courts just want to clear their dockets which is why they reversed. You have made no attempt to justify this claim, which, I suspect, you pulled out of thin air, though it amounts to a provocative accusation of significant ethical bankruptcy and judicial malpractice in "these courts" (whichever courts you may be referring to). Do better.

> whichever courts you may be referring to The 9th district court of appeals, something that's on the first page of the ruling. Did you read it? That was implicit in this comment thread. And the justification is the fact that this is an unpublished ruling "This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3" That alone is a good sign that these judges…

"That alone is a good sign that these judges don't really think this is a great argument."

No, this is a totally normal thing, at least for the 9th circuit (and a few others). They do not publish all rulings, and they don't designate all opinions as precedential.

The rest is just disagreement with governing law, framed as if the court should have disregarded it and done what you wanted.

"California law requires that the end user makes an affirmative action to accept a TOS agreement in the form of checking a box or clicking a button. Something the court admits the defendant does not do."

This is only true as of July 1st, 2025. So was not in force at the time of this dispute.

"Just showing someone text does not count as accepting the TOS."

During the time, it did, as the court explains pretty well.

It is hilarious that you think this was about clearing a docket.

As a lawyer, I would guess this was literally the last thing they cared about here.

I also happen to think consumers get shafted and am quite happy with california's recent contract law changes, but ... this ruling is quite clearly reasonable, if not totally correct based on the law as it existed at the time.

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

#404

Post by hsbauauvhabzb »

duskdozer wrote: post #63
hsbauauvhabzb wrote: post #53

Earlier quoted context omitted.

The cost of adding a support desk outweighs any potential profit, I would imagine by a huge amount given accounts are ‘free’. It’s not that the executive don’t know, it’s that they don’t care.

If they weren't making enough money from having people use their "free" accounts, they wouldn't offer them.

I’m not disputing that, I’m suggesting the cost of support staff outweighs the value (to google) of retaining broken or lost accounts. I’m not a legal expert but it might be a good pre-emptive move to add support even if it’s extremely poor purely to avoid government regulation (given identity is basically bound to email, it might be a unique scenario if someone is unable to identify because of a private company, etc).

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

#405

Post by hsbauauvhabzb »

kotaKat wrote: post #81
hsbauauvhabzb wrote: post #16

The email account I cannot access because google decided to ask me for a captcha for which I have no knowledge of, and the don’t have a human help desk that I can contact to prove ownership by providing ID documents? Got it.

The jackasses at Ring provide a clickwrap forced EULA consent in their app update changelogs . https://play.google.com/store/apps/details?id=com.ringapp They slip "By using this app, you agree to Ring’s Terms of Service (ring.com/terms). You can find Ring’s privacy notice at ring.com/privacy-notice." into their app update changenotes for every update.

You’ve already bought the product, they don’t care about your feelings or opinions now.

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

#406

Post by anonym29 »

throwaway27448 wrote: post #242
everdrive wrote: post #182

Earlier quoted context omitted.

Every single ToS is written to benefit the company, and when necessary, harm the consumer. The answer is to enter into as few service contracts as possible. Use open source software. Control when your software updates. Really, never use the cloud version of anything whatsoever except where unavoidable. (eg: email and such) They feel like the legal equivalent of Calvin Ball. So long as you just stash it in a ToS, you…

> The answer is to enter into as few service contracts as possible Even the idea that TOS qualifies as accepting a contract makes a farce of the entire concept of contract law.

You think that's bad? Imagine being unironically held accountable to the unenumerated terms of a "social contract" that you never even signed or had a right to refuse in the first place.

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

#407

Post by ratelimitsteve »

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…

this. was it LG that shipped an update to their TVs that made it play ads and bricked the TV if you didn't agree?

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

#408

Post by sowbug »

_alternator_ wrote: post #351
palmotea wrote: post #259

Earlier quoted context omitted.

> Right? A “contract” that only one party needs to abide by is not a contract… it’s an abusive relationship. I think you're absolutely right morally, but I think you've made a pretty important technical error: they're not abusive because "only one party needs to abide...by the contract", they're abusive because only one party can unilaterally change the deal . The companies that make these "contracts" can actually fo…

Wonder how a court would treat it if users just reply to the email updating the terms of service on our behalf and claiming that they have accepted the terms by not doing anything. (Eg add stringent PII protection, no tracking requirements…) My guess is that you would probably get kicked off the service if anyone reads your TOS, so make sure to add onerous cancellation charges due to the user in your updated TOS.

I could imagine an AI sidekick that does all this work for you, and always has the last word because it'll never give up.

A place like Meta or Microsoft would tell you to pound sand, but an aligned army of collective-bargaining agents might succeed in removing a specific term from a smaller service.

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

#409

Post by tialaramex »

masfuerte wrote: post #337
tialaramex wrote: post #260

Earlier quoted context omitted.

In the UK, where I live, it's completely usual to treat this as a contractual obligation. If there's a problem which means the train can't take you there, the operating company will do everything reasonable to achieve the offered service, exactly because otherwise they'd be in breach. Example: there are a series of scheduled trains from London (St Pancras) to Nottingham. One day maintenance works meant the line would…

That's a statutory obligation. It works for the consumer because it's not the rail company that gets to choose the terms.

The terms of the contract are required by central government, but it is still a contract.

One of the things your government could and should do for you is stand up to this sort of bullying by those who have more money and power.

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

#410

Post by xnyan »

anonym29 wrote: post #406
throwaway27448 wrote: post #242

Earlier quoted context omitted.

> The answer is to enter into as few service contracts as possible Even the idea that TOS qualifies as accepting a contract makes a farce of the entire concept of contract law.

You think that's bad? Imagine being unironically held accountable to the unenumerated terms of a "social contract" that you never even signed or had a right to refuse in the first place.

The difference is that a social contract is a concept and not literal contract.

The actual reality behind "the social contract" is simply that people have the capability to act in ways that can and do affect other people. Because of this, most people find that it's beneficial to moderate our actions in relation to other people based on their preferences.

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