When two companies negotiate a contract, typically what happens is this. One team of lawyers drafts the contract. They send it to the other lawyers. Both business teams consult their lawyers, and the lawyers update the contract with their desired changes. Then the first company comments on desired changes and they negotiate.
The result, after perhaps many rounds of negotiation, is often a far different contract than was originally proposed.
That is NOT what happens with consumer terms and conditions agreements, or cell phone contracts. There, the company's lawyers draft a contract that is as favorable to them as is legal. The consumer does not have the legal team or negotiating power to push back: their choices are to sign, or to walk.
These quite different contract processes are worth thinking about. Is this the way we, as a society, want contract law to be used?
In fact, they will frequently put in clauses that are known to be invalid, hoping that customers simply cave in when shown the clause.
*knowing
Any resources I can learn more about this? An acquaintance of mine runs a research group at a university, designing and executing survey instruments for other groups. Periodically asks me to help her with leveraging Facebook Ads for participant recruitment when her traditional targeting means falls short (generally surveys that need participants less than ~35, but sometimes for other unique targeting requirements).
The ads usually advertise a gift card for qualifying and participating, and the only branch of the survey that includes the gift card portion is the one where participants both complete the survey and don't get routed out by the initial qualifier questions. The recruitment ad copy, the survey instruments, etc all have to go through IRB approval, so I assumed that process was all above board.
There is also a EU-wide regulation ensuring similar laws exist in all EU countries.
That sounds noble. However, the actual practice of getting patients consent for medical trials is pretty much the same as a website ToS click-through [1].
[1] Source: it used to be my dayjob to sign patients on consent forms.
1. When corporations "negotiate" with consumers, this is an abuse of the legal system. Contract law was conceived for situations where both parties have at least some amount of negotiating power. Handing a consumer some long contract written by a set of well-paid lawyers, and asking them to sign it or walk away from any benefit from a product, is not the kind of contract we want in our society. In the past, we've used group association - collective bargaining, class action lawsuits, etc. - to solve this problem of many consumers, each with almost no power, negotiating with a big corporation with all the power. Arbitration clauses, and non-competes, are often examples of abuse of this power imbalance. This situation is the kind of thing government exists to do - solve problems for its citizens by working collectively. So perhaps regulation is also a remedy.
2. Informed consent, vs. terms-and-conditions consent. Click-through agreements with many pages, written by a legal team, in which the alternative for the consumer is to walk away, cannot be seen as informed consent by the consumer. When Facebook asks users to click "yes" for disclaiming privacy rights, that's not informed consent. We already have a definition of informed consent in scientific experiments, and it requires understanding every word of the consent and no penalties for saying no. (If a scientist offers subjects $10 for participating, the scientist must pay that $10 to anyone who declines the consent form.) Consent forms must evolve to match informed consent in science.
If as a society we deal with these two issues, we'll be in a much better place, and we'll be dealing with wealth concentration (into the hands of corporations), a key issue for our time.