Consumers First, Digital Citizenry Second: Through the Gateway of Standard-form Contracts

Abstract

The digital and global economy has fundamentally changed the very concept of a consumer, the consumer’s place in society, and the relationship between the consumer and other actors, such as governments. By buying goods and using services, consumers still play the role of passive actors in the market economy. However, in today’s society, with the increased digitization of goods and services, not only does traditional consumption behaviour make us consumers, but virtually all aspects of our daily lives and social interactions are made possible by, and conditional on, being consumers first. Indeed, citizens must consume digital products in order to fulfill other social, economic, and cultural roles.
Before we acquire a digital good or service that enables us to be producers, farmers, creators, learners, critical thinkers, or citizens, we must click on or sign lengthy terms and conditions—standard-form contracts—imposing the provider’s terms of service. Standard-form contracts lead to increased private ordering in the digital context—that is, service providers building their own rules and enforcement mechanisms in lieu of, or parallel to, state’s rules and enforcement mechanisms.
Standard-form contracts have now become the dominant regulatory mechanism of consumer relationships. Migrated from the commercial space, those standard-form contracts have also become important regulatory mechanisms of digital civic participation, as governments are now using such contracts for service delivery.
This chapter frames the relationship between consumers and citizens within the context of our growing dependency on standard-form contracts that effectively make us consumers first. It identifies the ineffectiveness in the current legal rules governing standard-form contracts and provides a related policy research agenda needed to limit the expansive private ordering of standard-form contracts.