If you are a fan of South Park, you know the writers of the show ruthlessly prey on the absurdities one finds in daily life. In the fifth season, the show took a look at terms and conditions in the now hilariously gross and famous HumancentiPad episode.
A brief summary of the episode does not do it justice, but let’s give it a go. One of the characters, Kyle, is kidnapped by Apple. He is to be part of a new revolutionary product known as a HumancentiPad in which three people are hooked up mouth to, well, you can read more about it here if you like. Nasty, but hilarious.
How could Apple and Steve Jobs [the episode was a few years back] do such a thing? Well, it turns out Kyle agreed to be a participant in the research experiments of Apple when he agreed to the terms and conditions for iTunes. Kyle’s response is he checked the box agreeing to the terms without reading the incredibly long page. His friends and family are shocked to learn he doesn’t actually read the terms for websites, which is a rather obvious spoof of the fact few people take such a step in the real world.
Is the episode correct? Yes. While it is safe to say a court is going to be slightly hesitant to enforce a human experimenting clause in the terms for a website, courts often do enforce less hilarious clauses. For example, a person who signs up for an online service often agrees to pursue any legal claims in the location of the company’s headquarters. This “choice of forum” clause is often upheld by judges regardless of the fact the user may be located in Boston while the company is based in San Jose, California.
I create terms and conditions, privacy policies and other legal documents for the websites of my clients. Despite this, I can’t recall the last time I read the terms and conditions of a website I joined. If a lawyer who writes terms isn’t reading them, it is safe to say the concept has become a bit of an absurdity.
Does this mean you should skip terms, privacy policies and the like on your website? Not at all. The terms are binding on users when created properly. As unfair as this might seem, this is not a new concept. Let’s consider an example.
You’ve probably had car insurance for much of your life. Do read the terms and conditions of each policy? You know, that thick envelope they send you a month before it is time to renew each year? You are the rare bird if you do. Does this mean the terms are not binding on you? Of course, not.
Will we see a change in how terms and conditions function online given Kyle’s experience as a human centipede? In a word – no. Terms and conditions will be used to establish the legal relationship between an online service or website and a user for the foreseeable future because, frankly, nobody has figured out a better method.
Does this mean you need to worry about Apple dragging you off to be part of a HumancentiPad experiment? It’s hard to say. I’m only halfway through the 36-page terms and conditions the company uses for iTunes.
Richard A. Chapo, Esq.