The Internet age has distorted the meaning of “agreement” to a contract almost beyond recognition: companies hide disclaimers, conditions, and waivers of our rights in the fine print of mind-numbingly long agreements. Just by clicking on an “I agree” checkbox, consumers can be forced to sign away their privacy, their intellectual property, or even their right to sue in court. Modern life requires us all to click or sign our “agreement” to such terms before we can use a cell phone, watch TV, or keep in touch with our friends on social media. No wonder no one reads these endless streams of unintelligible legalese. One researcher calculated that reading just the privacy policies that an ordinary person encounters in daily life would take a month out of every year, costing the economy the equivalent of the annual GDP of Florida. The “agreement” between consumers and companies to such contracts is pure legal fiction: consumers must deal on the companies’ dictated terms or not at all.
Barnes & Noble imposes some sane limits on companies’ ability to force consumers to give up important legal rights. We can hope this well-reasoned ruling will strengthen the efforts of those who are bringing attention to abuses of Internet “Terms & Conditions.” At least the Ninth Circuit has shown that, even in the Internet age, the common-sense meaning of “agreement” still counts for something.
Amy E. Tabor represents clients in complex cases, including class actions, commercial litigation, and antitrust matters. She practices at the nationally recognized class-action firm, Caddell & Chapman. She is licensed to practice in both Texas and California.