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Beware Of Clicking Your Rights Away

Bond University is urging people to be vigilant when using the Internet.

Associate Professor Dan Svantesson of Bond University said that people often ‘agree’ to terms and conditions without understanding the implications.

“When using the Internet, we are often asked to click ‘I agree’ to lengthy statements of terms and conditions,” Dr Svantesson said.

“In doing so, we may be agreeing to things we did not expect,” he said.

“For example, to view downloadable TV programs from one of Australia’s TV channels, you have to install a special player. And in installing that player you have to agree that the law of Israel applies to any dispute that may arise. You also agree that you cannot take legal action in Australia, but only in Israel.

“The people who draft these contracts are aware that people in general do not read them,” he said.

“They are also aware that if a person was to read them, that person is unlikely to understand the legal implications.

"And in the end, even if a person understands the legal implications, they cannot negotiate the terms anyhow.”

“Terms and conditions in these so-called click-wrap agreements are presented on a take it or leave it basis,” Dr Svantesson said. That is one reason why people do not read them. People choose to take a calculated risk in clicking ‘I agree’ rather than reading the contract.”

Research by Dr Svantesson from Bond University found Australian law provides some protection for consumers agreeing to unfair contracts. However, at the moment, Australia is considering signing an international convention (The Hague Convention on Choice of Court Agreements) that may partly undermine this protection.

The Hague Convention on Choice of Court Agreements is meant to ensure that the parties to a contract are bound if they make a choice as to where potential disputes should be settled.

“While it excludes consumer transactions, its definition of who is a consumer is narrower than the definition adopted in Australian law,” Dr Svantesson said.

“This means that some parties risk losing the protection provided under Australian law if the Convention is applied,” he said.

Dr Svantesson is positive to the Convention, but encourages some limitations.

“The Hague Convention is important and Australia should sign it,” he said.

“However, in doing so, Dr Svantesson said Australia must declare that it will not apply the Convention to contracts involving consumers as defined under Australian law.
“Australia should also declare that it will not apply the convention to online contracts,” he said.

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