Document Type
Article
Abstract
Terms of Service (ToS) of online platforms often contain Consumer Unfriendly Terms (CUTs). The CUTs encompass clauses limiting consumers’ rights in dispute resolution, limitations on remedies, and corporations’ rights to unilaterally modify the service, delete users’ content, and benefit from their data. The ToS resemble the offline “boilerplate” but, given the context of their functioning—digital capitalism—they also exhibit some critical differences, rendering the context-specific analysis necessary.
This Article argues that the continued toleration of the CUTs is undesirable on economic and democratic grounds. In digital capitalism, online platforms often enjoy a (quasi-)monopolistic position. Further, they can (factually and legally) collect and use consumer data to shape their experience and preferences, as well as to harm their privacy and mental health. Finally, the platforms can control the users’ behavior through the environment’s design and the “digital self-help.” Platforms are powerful market actors who face no significant economic pressure and, at the same time, are like private governors of the online environments who do not face any meaningful political pressure.
In this context, from the economic perspective, the CUTs can neither be presumed to be efficient nor to come with positive price effects. From the democratic perspective, their presence runs against some foundational commitments of liberal democracy. At the same time, CUTs’ continued toleration replaces the platforms’ self-regulation with self-dealing by disincentivizing the creation of safe products.
The Article argues that the combined countervailing power of politicaleconomic thought, legal reform, and technologically assisted social mobilization is needed to remove the CUTs from the ToS. The strategies for deploying existing legal tools, creating new ones, and relying on social pressure, are briefly discussed. The primary battleground, however, is the realm of thought. For the CUTs to go, we need to want them to go. This Article’s primary objective is to convince the Reader of that necessity.
Recommended Citation
Przemyslaw Palka, Terms of Injustice, 126 W. Va. L. Rev. 133 (2023).