Is a sites ToS "legal armour" against theft?

[drakahn]

https://bitcointalk.org/index.php?topic=83328.0

Theft may be the wrong word, but the way i see it is someone was charged for a service someone else provided, the service in the middle has charged one side, and not paid the other... I think theft is the right word.

So, it keeps boiling down to the ToS, which is very generic feeling and basically says they can do anything and you can't complain.

But does a ToS make using the site a binding contract? if yes, even if it is generic and weighted against the victim(s)? and would they (hypothetically) hold up in court?

All the lawyer talk in the thread made me want to ask the most legal minded people i know... this subforum

[Bitcoin Oz]

If its an unfair contract I doubt it would stand up in  court.

[rjk]

ToS have been shot down in court many many times. Not armor by any means.

[repentance]

Honestly, the answer is "it depends".

A limited licence can certainly be revoked.   Attempting to "game" a system can certainly lead to account shutdown and not getting paid (this has happened in the past with many ad-servers and affiliate programmes).

Whether a ToS will hold up in court often depends on how far its terms deviate from standard business practice and whether the conduct of the company has been especially egregious.  In many jurisdictions there are some legal rights which simply cannot be waived by any contract and any parts of a contract intended to waive them will be unenforceable (although the remainder of the contract may be valid).

I didn't read every post in the other thread, but Andrew is correct in claiming that non-payment for fraudulent clicks is the industry standard - it has been since the early days of pay to surf/pay per click (I was involved with a few such companies in the early days of PPC and click fraud was one reason many of those early companies didn't survive).  I've never heard of a PPC programme yet which hasn't had a problem with fraudulent clicks.

Just got to the part about the click through rate of the service involved.  60% is so outrageously above the industry standard for even the most well produced, highly targeted ads that no sane advertiser would pay for those click throughs.

[casascius]

See how it works in Greece.  Says the news lately, the Greeks paid their power bill, the power company isn't paying the other companies they buy fuel from cause they did something else with the money, and so now parts of Greece risk getting their power shut off.  Woot!

[repentance]

See how it works in Greece.  Says the news lately, the Greeks paid their power bill, the power company isn't paying the other companies they buy fuel from cause they did something else with the money, and so now parts of Greece risk getting their power shut off.  Woot!

Except that it the PPC industry advertisers would not pay the ad placement service for any click throughs that are more than a certain percentage above the industry standard.  If any advertiser has paid Andrew's service based on a 60% CTR, they're absolute fools - they should have suspected and been complaining to Andrew about the high likelihood of click fraud long before the CTR reached double digits and pulled their ads until the matter was investigated.

[bitlane]

For an Opt-In type of service, wouldn't any TOS pretty much be the final word ?

...as in, "By choosing to use this service, you agree to all terms and conditions...otherwise, don't use it" ?

[repentance]

For an Opt-In type of service, wouldn't any TOS pretty much be the final word ?

...as in, "By choosing to use this service, you agree to all terms and conditions...otherwise, don't use it" ?

Not necessarily.  While a contract is essentially a private agreement between two parties, it operates within a broader legal framework and there may be legislative requirements which over-ride the contract terms.  Many types of businesses are required by law to not co-mingle funds.  That requirement doesn't need to be written into a contract to apply.  If they have a legal duty to comply with AML/CTF requirements, that duty exists whether specifically stated in their ToS or not.  Disclaimers don't necessarily protect businesses if they're operating outside of the law.  You can put "this is not financial/legal" advice on your website, but a court may find that the manner in which you were acting means that you were providing financial/legal advice.  Product liability is another area where an express or implied contract may not hold up.  So is personal injury (in my jurisdiction, workplace injury is strict liability - it doesn't matter if the employees caused their injury by extreme recklessness, the employer is still liable).

The "fine print" in a contract can matter a lot but just because something is written into a contract doesn't mean it's lawful - and just because a right or responsibility isn't written into a contract doesn't mean it doesn't exist.

[Gabi]

For an Opt-In type of service, wouldn't any TOS pretty much be the final word ?

...as in, "By choosing to use this service, you agree to all terms and conditions...otherwise, don't use it" ?

No. TOS is nothing against the law. If some terms and conditions are illegal they are totally invalid

This "you accepted it so now you must do it" is wrong if the terms and conditions are against the law