Week 5 - Contract Terms of Use

ASIC has recently amended new laws that state that courts now have the power to decide whether a particular term in a contract is ‘unfair’ to one party. It can then deem that term void and non-binding. This is a step from ASIC to make companies more accountable for the standard consumer contract forms they supply. Many have stated that an important step, in light of this new crackdown, is to make the terms as transparent and accessible as possible.

This transparency has been a major issue in the United States of late also. There have been numerous examples of problems arising when sites change their terms of use to bring in a major user rights change, without giving adequate notice to users, Facebook for example.

So in light of the recent crackdown by ASIC on terms in a contract, what is a fair amount of notice? There will always be a trade-off between user’s rights, and the practicality for the website operator. In spite of this, however, I do believe it should be the case that, upon trying to access a website, a pop-up would require an agreement to new terms before use of the site. This would mean, without a doubt, users would know of their terms before use. While it may be slightly onerous for the company, I believe a user rights heavy approach such as this is the best way.

230Words

http://writ.news.findlaw.com/ramasastry/20090324.html - Facebook T&C Changes
http://www.hwlebsworth.com.au/latest-news-a-publications/publications/competition-and-consumer/item/907-unfair-contracts-accc-to-bring-test-cases.html - HWL Ebsworth Analysis
http://pub.bna.com/eclr/0675424_071807.pdf - US Case
http://www.asic.gov.au/asic/asic.nsf/byHeadline/Unfair-contract-terms-law?opendocument - ASIC Laws