The court further explained its thinking, applying various legal precedents to the current case, which truly does revolve around GUI functionality and button placement issues. “What cinches the case for Sgouros is the fact that TransUnion’s site actively misleads the customer. The block of bold text below the scroll box told the user that clicking on the box constituted his authorization for TransUnion to obtain his personal information. It says nothing about contractual terms. No reasonable person would think that hidden within that disclosure was also the message that the same click constituted acceptance of the Service Agreement.”
The court’s remedy: There must be a separate area to click for the T&C itself. “A website might be able to bind users to a service agreement by placing the agreement, or a scroll box containing the agreement, or a clearly labeled hyperlink to the agreement, next to an ‘I Accept’ button that unambiguously pertains to that agreement,” the decision said.
“The bottom line is that TransUnion, either deliberately or without adequate review, took a shortcut that caused it to forfeit rights it easily could have secured,” said David Goodman, an attorney with the law firm Greensfelder, Hemker & Gale. “Instead, they did it in a way that failed to provide adequate disclosure. If you want to bind somebody to a contract, you have to play fair and clearly display the contract terms. The more a company goes out of its way to make sure customers were given full opportunity to read the contact terms, the more likely the contract will pass legal muster.”
From a designer’s perspective, the panel’s ruling says that designs must be more explicit in what the user is agreeing to. That is fine, but the regrettable fact is the very concept of this kind of click signifying a meaningful knowing waiver of being able to sue is ridiculous.
Here’s the problem with the original Concepcion ruling. It said that a company has the right to say that, as a condition of this deal, the customer has to waive arbitration. A small change would have made a huge difference. It allowed consumers to opt out of that waiver, if that’s what they wanted. It would also have to explain in understandable terms the implications for a consumer of having arbitration rather than a civil lawsuit.
What happened after Concepcion was absolutely predictable. A huge number of large companies started adding these clauses into their standard customer agreements. In today’s mobile society, is working with a mobile carrier truly optional? If all of the major carriers insist on arbitration clauses in their purchase paperwork, do U.S.-based consumers truly have a choice? And if all of the competing banks in a community insist on the same provision, is it truly a choice?
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