Online terms and conditions: The legal rights killer?


By Anthony Mutunga

“By reading this article, one agrees to the following terms and conditions (T&Cs) which I stipulate one has to adhere to, a) in the presence of others, one will have to address everyone else only by their first names and nothing more; b) one has to give me (the writer) whatever they have in their pockets at the time of impact. By the fact alone that you read this article, under the law you are required to follow these terms…”

This is unfair, right?

Well unfair or not, if this was an online platform, and you agreed to the terms and conditions before opening and reading this article, you would have to adhere to them. This is more or less an example of how we carelessly agree to online T&Cs or end-user license agreements (Eula) without reading them, not knowing it is a legal contract. For example, recently a friend of mine was booking an airline ticket online and she was asked to click ‘I agree’ if she accepted and agreed the firms’ T&Cs; without bothering to read even one of them, she clicked yes.

On the day of the journey, she failed to make it to her flight in time and after asking to be refunded or her flight changed, she was refunded half of what she had paid. When she complained to the company, she was directed to the T&Cs she had agreed to, whereby, there was a clause stating that what the firm did was endorsed by her when she agreed to the T&Cs. The question arises whether it legally allowable for the firm to act as it had done.

We all at one point or another been asked to accept some terms and condition as part of an online transaction either when opening a new social media account or just trying to get to your bank statements online. This is more or less a form of an online contract which, like a normal contract, is a binding between two parties. In online contracting, there is includes the likes of click wrap contracts and browse-wrap contracts, which bring up fundamental questions when it comes to acceptance of contracts.

Click-wrap contracts involve a requirement by the user to agree to some terms and conditions before the transaction continues, after agreeing with the installation proceeds or user gains access to the web site. On the other hand, browser-wrap contracts are where the user visits a website with terms and conditions on it that implicate a binding component whenever one uses its services.

With the world moving into the digital era, everything is moving to the online platform, and online contracts are becoming more common. One almost cannot visit a website today without eventually being asked to agree to a listed set of T&Cs, but it is evident that not many people actually read and understand these legal conditions.

Why do most people always end up ignoring the terms and conditions or end user license agreement they agree to online almost every day? Is it even possible to read the T&Cs for everything a typical person does? Is it really important for one to read these terms and conditions? Regardless of this, a conclusion can be reached that the biggest lie on the Internet nowadays is: “I have read and agree to the terms and conditions.”

It is quite perspicuous that privacy on the Internet is usually not private as one thinks, as some terms of service that people ignore to read have clauses that give them the right to have access to ones information. For example, everyone who uses Facebook is a victim of privacy violation.  Facebook, in its terms and conditions, has a clause that allows it to be able to access information one has opened in other tabs on their browser.

This is how advertisements related to contents we have opened in other tabs on our browsers can be seen on the Facebook account page. As people do not normally read the terms and conditions, they do not get to see these clauses beforehand. People should be cautious because, what if one has opened some personal information in another tab? What happens if so much personal information reaches the wrong hands?

In Kenya, the Kenya Information and Communications Act (Kica) as well as the Evidence Act are the laws that govern matters relating to electronic transactions which include online contracting. The Communications authority of Kenya (CA) which is formed by KICA, is the department given the responsibility of promoting online transactions.

According to the report, in relation to online contracts in Kenya, the preamble to Kica provides that one of the overall objectives of the Act is to facilitate development of electronic commerce, which in this case is carried out by online contracting.

Even though Kenya has not had any cases of breached contracts concerning online contracts, the Kenyan law has given recognition to online invitations, offers and acceptance, although it does not adequately explain, especially when it comes to the implications the Internet poses in relation to the traditional rules of forming contracts.

The laws in place can be said to be full of holes that anyone conversant in law can take advantage of. This is evident whereby the law does not distinguish the terms offer and invitation in the online platform and the traditional platform; the unclear elucidation of exactly what communication entails, and also the issue raised by the click-wrap and browser-wrap agreements in Kenya.

As Kenya continues to progress more into the digital era, one can be certain that cases concerning breach of online contracts are likely to rise. It is paramount that we all start understanding the full extent of the legal agreement between a user and a service provider in the online platform.

People should take the warning and give a minute of thought before accepting the terms and conditions that come up on the Internet. They can be extremely tedious to go through, but that is better than having to learn later on that you breached a legal agreement. It is better if one goes through them and stays safe from legal problems because, what you don’t know can, in fact, can hurt you.


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