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Consumer Law and AI: Claudette’s User Agreements Analysis

Consumer Law and AI: Claudette’s User Agreements Analysis

How the 'CLAUse DETecTEr' uses Machine Learning Powered Analysis to respond to the difficulties of identifying potentially unfair clauses.

6th March 2019

Most of us don’t read Terms of Service (ToS), privacy policies or End-User Licence Agreements (EULA), which may form part or whole of online user agreements, despite acknowledging that our privacy is important. Claudette, one of the most recent advances in artificial intelligence, seeks to help us understand the dangerous implications of specific terms within online user agreements.

Why We Don’t Read Online User Agreements

There are a variety of reasons for not reading online user agreements:

They’re Overwhelmingly Long

A 2008 estimate of the time required to read one person’s privacy policies over a year is over 200 hours. And that’s without reading their ToS and EULAs!

They’re Not ‘Human-Readable’

Clauses in user agreements are engulfed in language that applies broadly and generally to limit as much liability as possible. The ‘legal language’ purposed for this can be difficult to understand without knowledge of legal jargon and contract law.

We Feel We Have No Choice

User agreements usually present us with only two options: ‘I agree‘ or ‘Cancel‘. Some user agreements are combined with the creation of an account, where a ‘Join Now’ button also operates as agreement. However, many privacy policies, cookie policies and ToS treat your use of their website and service as consent.

Online User Agreements are required to use online services, normalising our agreement to terms as a standard process. We don’t see any other choice but to agree.

Having come to terms with why we don’t read user agreements, what are our legal obligations related to them?

Consumer Law and User Agreements

Despite its name, an online user agreement is a contract under consumer law, and is therefore legally binding.

Learn how to differentiate between the two in What Is the Difference Between a Contract and an Agreement?

The Australian Competition and Consumer Comission (ACCC) states that you ‘could be entering a contract by: … clicking on an “I agree” button on a web page’, and advises that you ‘[m]ake sure you read and understand the terms and conditions of a contract before you accept it’.

The difficulty arises in our understanding of the terms of user agreements. Recognising a potentially unfair term may be difficult without legal knowledge and exposure to terms and clauses in contracts.

For legal advice regarding consumer law contact a LawPath verified Consumer Lawyer.

So how do we manage the difficulties presented by user agreements to ensure we understand the terms we agree to?

Continuing the fight for plain english contracts would be a great help, but perhaps artificial intelligence could lend a hand.

Introducing Claudette

Claudette, or ‘automated CLAUse DETecTEr’, is a ‘Machine Learning Powered Analysis of Consumer Contracts and Privacy Policies’ developed as part of a research project led by professors Giovanni Sartor and Hans-W. Micklitz.

The project aims to test the extent of machine learning and grammar-based approaches in evaluating the compliance of online user agreements with the European Union’s General Data Protection Regulation (GDPR).

Claudette is currently available as a demo ToS analyser and an automated privacy policy monitor of major online companies. In order to test its effectiveness, I copied and pasted Facebook’s ToS into the system.

In a few minutes, Claudette found 8 potentially unfair clauses in the 138 sentence ToS. Of the 8 potentially unfair clauses:

  • Four were Unilateral Termination clauses detailing Facebook’s rights in removing your content and/or suspending or disabling your account;
  • One was a Unilateral Change clause stating that Facebook may need to ‘update these Terms from time to time’;
  • Another was a clause contractually binding you to the aforementioned updated Terms ‘if you continue to use our Products’;
  • Then followed a Limitation of Liability clause limiting Facebook’s liability to you for any loss or damages ‘arising out of or related to’ their Terms or Facebook Products ‘even if we have been advised of the possibility of such damages’; and
  • And finally, a Jurisdiction clause stating your submission to the personal jurisdiction of courts in California and in any litigation taken against Facebook.

These clauses are all very important for a consumer to know, but they make up under 6% of Facebook’s Terms of Service and are surrounded by a bulk of legal language.

Final Thoughts

Ultimately, its the unbearably dense, complicated language and non-negotiability of user agreements that lead to us to ignore essential advice, even from the ACCC.

Something needs to change as a caveat emptor approach to consumer law enables online service providers and websites to take advantage of our lack of knowledge, experience and time by severely limiting their liability and dictating our contractual obligation through merely browsing their site or owning an account during a ToS/privacy policy update.

Plain english requirements for contracts would certainly help to reduce the power disparity between consumer and provider, but Claudette represents the next era of consumer-empowering artificial intelligence.

The counter-power provided to consumers will track data collecters, their methods and put a stop to it. Simultaneously, empowerment will spill into other areas: targeted and aggressive advertising, automated decision making and personal assistant technology.

There’s more discussion to be had on this topic. Stay tuned.

Don’t know where to start? Contact a LawPath consultant on 1800 529 728 to learn  more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest legal marketplace. 

Author
Shaheen Hoosen

Shaheen is a Legal Tech Intern at Lawpath as part of the Content Team. He is in his final year of a Bachelor of Laws with the degree of Bachelor of Information Technology (Major in Information Systems and Business Analysis) at Macquarie University. He is interested in IT Law and Access to Justice.