Terms of Injustice

52 Pages Posted: 24 Mar 2023 Last revised: 26 Apr 2024

See all articles by Przemysław Pałka

Przemysław Pałka

Jagiellonian University in Krakow - Faculty of Law and Administration; Information Society Project at Yale

Date Written: February 15, 2023

Abstract

Terms of Service (ToS) of online platforms often contain Consumer Unfriendly Terms (CUTs). The CUTs encompass clauses limiting consumers’ rights in dispute resolution, limitations on remedies, and corporations’ rights to unilaterally modify the service, delete users’ content, and benefit from their data. The ToS resemble the offline “boilerplate,” but given the context of their functioning – digital capitalism – they also exhibit some critical differences, rendering the context-specific analysis necessary.

This paper argues that the continued toleration of the CUTs is undesirable on economic and democratic grounds. In digital capitalism, online platforms often enjoy a monopolistic position. Further, they can (factually and legally) collect and use consumer data to shape their experience and preferences, as well as to harm their privacy and mental health. Finally, the platforms can control the users’ behavior through the environment’s design and the “digital self-help.” Platforms are powerful market actors who face no significant economic pressure and, at the same time, are like private governors of the online environments who do not face any meaningful political pressure.

In this context, from the economic perspective, the CUTs can neither be presumed to be efficient nor to come with positive price effects. From the democratic perspective, their presence runs against some foundational commitments of liberal democracy and, at the same time, replaces the platforms’ self-regulation with selfdealing by disincentivizing the creation of safe products.

The paper argues that the combined countervailing power of political-economic thought, legal reform, and technologically assisted social mobilization is needed to remove the CUTs from the ToS. The strategies for deploying existing legal tools, creating new ones, and relying on social pressure are briefly discussed. The primary battleground, however, is the realm of thought. For the CUTs to go, we need to want them to go. This paper’s primary objective is to convince the Reader of that necessity.

Keywords: consumer law, contract law, terms of service, injustice, digital capitalism

Suggested Citation

Pałka, Przemysław, Terms of Injustice (February 15, 2023). West Virginia Law Review, Vol. 126, pp. 133-184, Available at SSRN: https://ssrn.com/abstract=4391666 or http://dx.doi.org/10.2139/ssrn.4391666

Przemysław Pałka (Contact Author)

Jagiellonian University in Krakow - Faculty of Law and Administration ( email )

Krakow
Poland

Information Society Project at Yale ( email )

127 Wall Street
New Haven, CT 06511
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
120
Abstract Views
488
Rank
428,485
PlumX Metrics