Clickwrapped
Who respects your rights online?

In 1875, Mr. Parker left his bag in the cloakroom of London's Charing Cross railway station. He paid two pence and received a ticket that had some terms and conditions printed on it. One of these said that the railway company was not liable for items worth £10 or more. Mr. Parker didn't read the ticket. When his bag was lost, he sued. In a landmark decision, the British Court of Appeal decided that it didn't matter that Mr. Parker hadn't read the terms. He was still bound by them.

The small print on Mr. Parker's railway ticket is nothing compared to the long and complicated standard form contracts that we agree to on a daily basis these days. Standard form contracts are a necessity in a modern economy. It would be impossible for Facebook to negotiate terms individually with each of its 950 million users. Standard form contracts can also be mutually beneficial. They typically shift certain risks from the business to the consumer, reducing the cost of providing the service. Some businesses would be impossible to run if they were not able to exclude certain risks. If Microsoft could be sued every time a bug in one of its software products caused a customer to lose important data, it would struggle to stay in business.

However, this only works out properly if the company and the consumer are equally well informed about the terms of the contract. Economists tell us that if there is "asymmetric information", the result will not be optimal. This is clearly the case when it comes to terms of service, privacy policies, and the other agreements hidden in the footers of the sites we visit every day. They are long and sometimes difficult to understand. They have become so common that to read every single one that we encounter would be so time consuming as to be irrational.

Clickwrapped hopes to solve this problem by telling you what you've probably already agreed to. We try to focus on the important points, like what each of the sites can do with your data. If you find something that you think is unacceptable, we encourage you to help us bring about change by telling the relevant site what you think. We know that only a very small number of people feel strongly enough about this stuff to vote with their feet. If Mr. Parker had read his ticket, he probably would have boarded the train anyway. But if the railway company knew that enough people were unhappy about their terms, they may have done something about it.

Clickwrapped is written by Andrew Nicol, a lawyer based in New York City. Andrew worked as a corporate attorney at Cravath, Swaine & Moore LLP before becoming a tech entrepreneur. He studied at the University of Western Australia and Harvard Law School.