Becher & Zarsky Article on using the law of mistake to attack digital contracts

Samuel Becher of the Victoria University of Wellington and Tal Zarsky of the University of Haifa have written Big Mistake(s), forthcoming in the Florida Law Review. Here’s the abstract:

The digital age has brought the imbalance of power between prominent firms and individual consumers to the forefront. Despite their proclamations of upholding democratic values and prioritizing user well-being, online platforms routinely deploy various mechanisms to disadvantage users and exploit them. This Article takes on one of the thorniest legal challenges that dominant online platforms pose: the often manipulative ways in which they unjustly benefit from users’ attention, time, and troves of personal data, which are intangible assets that the law struggles to quantify and fails to adequately protect.

Leveraging the current legal landscape, online platforms tie their users into contractual relationships that suppress their rights while limiting the platform’s legal duties and obligations. Responding to this reality, this Article contends that the contract defense of mistake can be revitalized and adapted to the unique circumstances of user-platform interactions. Specifically, it explores the circumstances under which platform users should be permitted to void their contracts, sidestep provisions that limit access to justice, and seek restitution and other remedies for their data, time, and attention.

The Article makes three key contributions. First, it proposes a novel framework for the doctrine of mistake, tailored to the distinctive challenges of digital contracting. Second, it assesses how a revised mistake doctrine could enhance consumer access to justice even in view of arbitration clauses and other contractual limitations. Third, it introduces and reevaluates post-mistake remedies, paying special attention to restitution and disgorgement in digital markets dealing with intangibles. Ultimately, the Article seeks to reshape the legal framework governing digital consumer contracts, advocating for a more equitable and just digital marketplace.

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