First, there were “shrink wrap” contracts – contracts accompanying physical products, such as software, in which the consumer “agreed” to to the contract by breaking the shrink wrap. In the digital age, we have become accustomed to “clickthrough” or “clickwrap” contracts – the user agreements requiring us to click OK in order to, say, download the latest version of iTunes. (And let’s be honest here – just as with the shrink wrap contracts, not many of us can claim to carefully read these before clicking OK.) In legal terms, these are considered contracts of adhesion, a “standardized contract form offered to consumers of goods and services on essentially a ‘take it or leave it’ basis without affording consumer[s] realistic opportunity to bargain and under such conditions that consumer[s] cannot obtain [the] desired product or services except by acquiescing in form contract” (Black’s Law Dictionary, 6th ed.). Due to the lack of bargaining power, courts may be lenient when it comes to particularly outrageous provisions in these contracts, but by and large they are not considered unconscionable.
To say these types of contracts are commonplace today would almost be an understatement – there are very few products you can download or internet services you can sign up for these days without encountering such an agreement. However, as recent news reminds us, the savvy person will make an effort to know what s/he is signing up for. This week, Instagram, a photo-sharing service that makes it simple to share photos taken with your phone, has come under a great deal of heat about the recent changes to its user agreement. In particular, the following language has come under fire:
This language is in contrast to the provision’s previous version:
What will be more interesting, perhaps, is to see how else the language of these new provisions can be interpreted. Beyond Facebook advertising, what else might advertisers be able to do with your content? Given the immediate backlash, will Instagram simply back off and retain its current Terms of Service instead? With the story still in development, only time will tell. If nothing else, this is a great example of the risks of clickthrough agreements and a lesson in safe consumerism.