Personally, this is what I detest the most. There's always a bit in the boilerplate that's akin to "you agree to everything here, even the unenforceable bits. If we're ever challenged on the unenforceable parts after the fact, you still agree to be bound by everything else here."
IA[very_much]NAL, but to me this always sounds like "We can and will stick whatever nonsense we want in this contract, whether the terms are illegal or not, and you will be bound by them for as long as we can get away with it. If you do ever discover the illegal bits, that doesn't void anything else (including any other illegal bits you haven't found yet!) and you can't sue us- you've given up that right and can only use a mediator from our approved list. May the odds be ever in your favor."
This is separable from the abusive nature of ToS of course.
That sounds like a good thing? Why should abusive illegal contracts be allowed to continue after the law has found them to be unacceptable?
It's one thing if the legislation is specifically targeting those contracts, quite another if the unintended consequence is much broader than you intend. It's easy enough to imagine legislators unintentionally invalidating basically all of a states employment contracts this way, for example.
> Signer agrees to become contract murderer unless pre-empted by local laws and regulations.
I'm over-exaggerating, and I get the value when it's prohibitively expensive to write a TOS when it's essentially impossible to pre-emptively vet the legality of all possible clauses internationally as laws constantly change. But if the clause I wrote is technically valid, then what's the point? Just write a short phrase saying "We're going to do whatever we like, unless it's prohibited by law. Accept? Y/N"
Literally who cares? Let them deal with it. It doesn't matter how much money they lose. They should have considered the consequences of abusing people's trust and violating their privacy under questionable consent.
Corporations are vastly more powerful compared to individuals. Courts obviously need to favor the latter in the vast majority of cases. To do otherwise is injustice.
"doesn't matter how much money they lose" -- of course it does, these companies employ people and generate lots of government revenue (even if they skirt corporate taxes).
There are political and economic concerns, not judicial. The fact the company is important does nothing to remedy the fact that it exfiltrated private information to foreign intelligence agencies.
I'm afraid you are correct, but hasn't the whole system collapsed if:
- Is this good for our businesses?
is is part of your consideration when you are trying to find out if something is illegal or not?
Example; how one individual singlehandedy forced the hands of Spotify to reverse an API decision they made blocking the export of your playlists. Note how Spotify thinks their TOS supersedes the GDPR. It does not. Otherwise, we would have corporations directly creating laws.
For example the UK's enforcement arm, the ICO, recently found that the adtech industry was in violation of the GDPR, then did nothing:
https://www.openrightsgroup.org/blog/the-ico-must-fix-the-ad...
As far as I know, I can't personally sue these companies for this, and if the ICO does nothing then what's the law is meaningless.
The follow up from the Open Rights Group is here:
https://www.openrightsgroup.org/blog/parliament-must-hold-th...
If you care about privacy in the UK, please donate to ORG, I started a direct debit years ago and have always been impressed with their work and focus:
Couldn't you sue ICO then?
https://action.openrightsgroup.org/help-us-protect-your-data...
More precisely, these agreements generally aren't legally binding in Europe, but generally are legally binding in the US.