Your online business is humming along, people are signing-up and buying stuff online, all while you assume that the business is protected by the legal terms and conditions that you are (ideally) presenting via some clickwrap agreement. Then POOF you get sued -- and not just any lawsuit -- but a dreaded class action lawsuit! You think "no problem, our terms and conditions have a class action waiver that requires arbitration."
If you're anything like us here at the PactSafe offices, you're probably spending a few minutes over lunch this week wandering around the streets outside your office trying to catch Pokemon. If you're not, well don't worry -- the guilt, shame, and embarassment of walking around as a grown adult playing an adaptation of a late-90s children's game wears off quickly. There's still plenty of time for you to catch up, reach Level 5, and head over to the nearest Pokemon Gym in your neighborhood to do battle.
Author: Brian Powers, Founder and CEO of PactSafe, Inc / licensed attorney
© 2015 PactSafe, Inc, All Rights Reserved
By now, you're likely familar with daily fantasy sports powerhouses DraftKings and FanDuel and the controversy surrounding the two in recent weeks. Added capital, wild success, and a relentless advertising blitz helped to raise suspicions about the companies' practices—some of which were confirmed when reports surfaced that employees of the companies were using inside information to win large sums of money playing the games on the competitors’ platform. Since that time, the two companies have been served with a number of lawsuits for fraud, negligence, racketeering, and false advertising, in turn, facing heightened scrutiny from regulators. A federal inquiry is already underway into the industry's practices. Nevada has already demanded the sites become properly licensed in the manner of a sports book. But, the industry's most threatening move might come from the state of New York, where the state's Attorney General has requested an injunction to keep the sites from operating within the Empire State's borders.
All too often, privacy policies and other online terms are thick, dense, and hard to understand for an average consumer. As consumers have grown more conscious of what they’re signing -- or clicking -- away, there’s been pressure on companies to make these terms more easy-to-digest.
Browsewrap agreements aren't the only type of online legal agreement that could bring you trouble online.
For Guardian reporter Alex Hern, thinking about all the small print on the Internet made him want to die... so he took seven days to read 146,000 words of various companies’ Terms of Service, and the result? It made him want to die even more.
If you've followed our blog at all, you already know that using a browsewrap agreement to bind consumers to terms on your website isn't the best practice for organizations looking to keep legal risk away. But we often receive the question -- well, isn't everyone else doing it? Sure, we knew there were some sites or companies that weren't overly concerned with protecting legal risk and were much more concerned with the "user experience" or the "aesthetic value" of the page. (We'll put those in quotation marks -- because it's plenty easy to preserve both while providing the user more-than-adequate notice.)
As someone who's grown up living and breathing technology, there are very few pieces of personal data I put out on the internet that I care about keeping to myself. I've embraced the oversharing — but there are quite a few things that Facebook, Google, Instagram, and Twitter know about me that still make me a bit anxious were they to get out there publicly or fall into the wrong hands.