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Valparaiso Univ. Law School

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Tuesday, July 29, 2014

Not OKCupid!

First it was Facebook, now it's OKCupid toying with its users who have no idea that they actually consented to being toyed with when they signed up with the service.  Like Facebook, they employ a one-two punch -- they use a contract to legitimize their actions and then social shaming to normalize their conduct as a business practice.  The rhetoric of contract and consent staves off irate users and deflects blame away from the company and onto the user (you agreed to let them use you in research, you fool!  It's your fault - if you had read the privacy policy, you would have known).  Here, OkCupid brazenly admits to their dubious tactics with a "we've-got-nothing-to-hide" attitude and then goes a step further by acting like there's something wrong with you if you have a problem with it.  In a post on the company's blog proudly proclaiming:  "We Experiment on Human Beings!", OkCupid's president writes that "if you use the Internet, you’re the subject of hundreds of experiments at any given time, on every site. That’s how websites work."  

Translation:  That's just how it is.  Get over it.  It's your fault for being so naive - OKStupid? 

Not OkCupid.

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I’m finishing up an essay on your (Nancy’s) Wrap Contracts book that deals in part with the issue of producers (re-)creating norms of commercial reasonableness. I think that both the UCC and the R2K uses of “commercially reasonable” standards in formation, interpretation, gap filling, enforceability, and remedies are based on the underlying assumption that this standard is legitimated and justified because they emerge as a result of the interaction of parties who are focusing on the micro-level issue of just getting the transaction done. OKCupid’s “brazen” (I would have chosen a less polite word) response seems to have a pretty dark motive—it’s almost like they are deliberately through their brazenness attempting to use these transactions to change the norms themselves. Their contract is no longer aimed at just getting the transaction done, but is rather influenced by OKCupid’s extrinsic goals of changing contracting norms to make reasonable their undisclosed human experimentation. If a repeat player is deliberately attempting to manipulate norms of commercial reasonableness for its own benefit, that seems to undermine the legitimation function of using commercial reasonableness as a standard.

Posted by: Dan Barnhizer | Aug 1, 2014 11:11:18 AM

HI Dan,

That's an interesting point. I think a lot of companies (especially Internet based companies because the law is not as well-defined) use wrap contracts to shape norms. You can see this in the area of privacy - legitimating data collection by obtaining "consent" through wrap contracts. I think your last sentence is exactly right -- a repeat player deliberating trying to manipulate norms does undermine the legitimacy of the standard - but if the repeat player succeeds and establishes the practice as a norm, then does it become legitimate? This forces discussion of why unconscionability almost by definition doesn't often save the day. If enough repeat players engage in the same practice so it becomes a norm, doesn't that by definition mean it can't be substantively unconscionable? I guess the big question is how to distinguish legitimate norms from fabricated/constructed ones - especially when the latter eventually become the former?

Posted by: Nancy | Aug 5, 2014 7:19:20 PM

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