Tim Samples of the University of Georgia – Terry College of Business, Katherine Ireland of the University of Georgia Libraries, and Caroline Kraczon, a law fellow at the Electronic Privacy Information Center, have written TL;DR: The Law and Linguistics of Social Platform Terms-of-Use, Berkeley Technology Law Journal (forthcoming 2023). Here’s an excerpt from the article about arbitration opt-outs (footnotes omitted):
* * *Grindr requires an image of a driver’s license as part of the opt-out procedures. The Viber TOU contains a passing mention of an opt-out right in the header of the agreement, but no procedure is ever specified. Gettr, which requires a mailed letter, allows users just five business days for submitting an opt-out notice. But the Gettr clause does not specify whether the five-day time limit applies to a postmarked or actual receipt:
Unless you give us notice of opt-out within five (5) business days of your first use of
the Service, addressed to: 3 Columbus Cir, 20th Floor New York, NY 10019, all
actions or proceedings […] shall be submitted to JAMS (www.jamsadr.com) for final
and binding arbitration.
And here’s the article’s abstract:
Online terms-of-use (TOUs) are the most widely used form contracts in human history. But TOUs are as poorly understood as they are ubiquitous. Their proliferation has fueled a yawning gap between contract law and consumer reality. The notion that users read and understand online TOUs, disproven in academic research, is the subject of pop culture mockery. Yet contract law assumes something very different. Because classic legal doctrines apply to online contracts, consumers routinely find themselves legally bound to contracts they have not—and often could not—read.
In this article, we evaluate the law and linguistics of a critical area of consumer contracting: smartphone-based social platforms. Our interdisciplinary study examines an original dataset of 196 contracts (TOUs, privacy policies, and community guidelines) for seventy-five apps. Our analysis highlights a decoupling of contract doctrine and consumer reality in the smartphone age of online contracting. Our results show that this divergence is fueled by extraordinary volume, complexity, and asymmetries in platform-to-consumer contracts. In addition, our results offer evidence that the decoupling has grown in recent years.
