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SSRN Electronic Journal
Article . 2023 . Peer-reviewed
Data sources: Crossref
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Terms of Injustice

Authors: Pałka, Przemysław;

Terms of Injustice

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.

Country
Poland
Related Organizations
Keywords

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

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
2
Average
Average
Average
Green