Ask HN: Is 'By using this this site you agree to' legal/contractually binding?

Sorry if I did this wrong, this is my first actual post.

I see these pop-ups or modals on so many sites constantly annoying me. I read almost none of them and block most of them so they can't say 'well they clicked X so they agreed!'

It feels like walking into a store and being told after you are inside that by entering you have agreed to, I dont know, buy 10 things for $100 each.

How is it not complete bullshit to be told that by landing on some random page, or viewing some random article they can say you have agreed to what may be 10 pages of TOS, and they only show you what you've actually 'agreed to' if you click a couple more links and do some heavy reading.

This popup on the NYT article on HN today about the heroin epidemic sent me over the edge, and finally prompted me to ask this here.

6 comments

[ 3.3 ms ] story [ 24.1 ms ] thread

ziddoap 6y ago ↗

I am not a lawyer, but it might be helpful to include the country and state/province you are hoping to get the laws for as it may be binding in some jurisdictions and non-binding in others.

effingwewt 6y ago ↗

Oh man, I'm that typical American thinking everywhere else is the same, I'm so sorry. I'm US based, from California.

Since you mentioned locale though, would the location of the site hosting be the applicable laws, or would it be my location?

ziddoap 6y ago ↗

That's a great question that I wish I had a clear answer to. I would (hesitantly) assume that it would be the location which you are accessing the website from. I base this on the assumption that it would be similar to GDPR laws, where US companies serving EU customers must comply with EU laws (or non-California companies serving Californians having to comply with CCPA). Sorry I can't be of more help - it might be worth asking r/legaladvice or somewhere similar with a higher concentration of lawyers.

mgamache 6y ago ↗

IANAL -- But I think that no one knows. Some maybe, most probably not (see the Linked In lawsuit -- https://www.theverge.com/2017/8/15/16148250/microsoft-linked...). This all has to be tested in court, but it has not yet. Just like EULAs -- more bark then bite, but fear will keep the local systems in line.

thedevindevops 6y ago ↗

From the GDPR guidelines:

Consent requires a positive opt-in. Don’t use pre-ticked boxes or any other method of default consent.

Digory 6y ago ↗

The phrase you can Google is "clickwrap." It's a variation on the old practice of telling buyers they were bound by the terms on the box when they opened the shrinkwrap.

At the level you're asking, yes, it can be binding in most US places. But lots of legal rules apply to unreasonable or surprise contract terms. So "it depends" is about as straight an answer you can get here.