ContractsProf Blog

Editor: Jeremy Telman
Valparaiso University Law School

Monday, August 31, 2020

Who's Afraid of a Little Express Consent?

Facebook, digital publishers, and others who make money serving up ads to iPhone users are in a tizzy because Apple is doing something rather awesome for its customers.  It is requiring the explicit permission of iPhone  users before they allow apps to surveil their online movements for purposes of personalized advertising.  Here is where we step into the psychedelic world of consent permissions.  For years, Facebook and its pals in marketing and advertising sales, argued that users “consented” and granted permission to these data tracking practices by clicking “Agree.”  Contracts profs split over this issue – some argued that this was not consent; others argued that it was.  The no-reading problem wasn’t really a problem, according to those in the latter camp, because users would have agreed to the terms anyway.  (I wrote about this split in Greenbag a few years ago in the context of Margaret Jane Radin’s book, Boilerplate, and Omri Ben-Shahar’s review of it).  Ben-Shahar divides these two groups into the “autonomists” and the “boilerplate apologists.”  I prefer using less fancy terms so I’ll stick to calling them the “real consent” camp and the “no reading, no biggie” camp.

If the folks in the “no reading, no biggie” camp are right – and that consumers really don’t care about being tracked in exchange for personalized ads– then Facebook and its advertisers should have nothing to fear.   But I suspect that they will have plenty to fear and that Facebook knew all along that its version of consent was just another type of misinformation that it was guilty of distributing.

Commentary | Permalink


Nancy, you always make the best arguments out there for the “consumer consent” requirement. But I’ve never found it useful in the boilerplate context. True, someone who buys something from my website doesn’t “consent” to my boilerplate terms. But I haven’t consented to sell my product or service to someone who won’t accept my terms. My boilerplate terms make that very clear. And those terms mean I have pretty thoroughly disclaimed the non-mandatory default terms. I don’t disagree that there are grounds for protecting consumers in some cases, but I don’t think “lack of consent” is one of them.

I always compare this to the regulations we put in our dreary and cumbersome Student Handbooks. My own syllabus, which used to run three pages, now has five pages of boilerplate dictated by the Home Office in College Station. Do students “consent” to these rules by signing up for my class?

Posted by: Frank Snyder | Sep 1, 2020 2:28:24 PM

Hi Frank,
Thanks for the comment! There is a difference between a contract (with requires consent) and a policy (which is based upon your authority). You can establish your own policy but your policy can't impose restrictions or take away my rights without my consent. We "read" consent into conduct when it's clear that the consenting party knew of the terms and proceeded anyway. But why should we do that when the terms are hidden away and we KNOW that nobody reads them? Why should we place the burden on the party least able to bear it rather than the drafting party who is in a much better place to present the terms in a more conspicuous and digestible manner?
As for your Student Handbook - dreary and cumbersome though it may be, I doubt there's anything in it that would surprise students. But what if you wrote a statement saying that students must buy you lunch every fifth class? Would that be enforceable simply because it was buried in your handbook? (Of course not). But language that says students who show up tardy may not receive credit for that day is fair game. That policy doesn't require a contract because the students don't have the right to set attendance policy for your class - you do. But they do have the right to decide what to do with their lunch money....

Posted by: Nancy Kim | Sep 1, 2020 4:10:57 PM

I think this finesses the problem. If I, the seller, take the time to write down terms and insist that people click on them before I sell, I am stating very clearly (much more clearly than the buyer who actually clicked “I agree”) that I do not consent to the buyer’s terms or to any non-mandatory defaults. I have not “consented” to any contract that is not on my terms. The Code doesn’t require that kind of consent for anything. If I do Xand you do Y, we have a contract and the terms are Z, whatever either you or I wanted to do.

None of the buyer’s “rights” are taken away, since the buyer has no right to compel me to provide him or her with anything unless I agree. The buyer has no right to insist on any specific non-mandatory term if I object. Under your approach, it seems the buyer gets to take away my rights by making me sell on terms to which I object. I don't know any basis for arguing that only one side has to consent to a contract. I don’t mind favoring the consumer in disputes, but consent (which under standard doctrine both parties are supposed to give) seems a poor tool to protect only one side.

I’m not sure what you mean when you seem to suggest that there is no contract between the school and the student. The student has obligations under the contract, which create conditions for the school’s performance. A student has no obligation to arrive on time unless a contract requires it; no one in the world except my students has to be anywhere when I tell them to. In your hypo, the student exhibits exactly the same consent to my tardy policy and my sandwich policy. Of course I wouldn’t enforce the latter, but it’s not because it wasn’t consented to. It’s because some substantive policy makes the term oppressive or otherwise unenforceable.

Posted by: Frank Snyder | Sep 3, 2020 2:31:44 PM

This is a bit of an aside, but I have never considered my syllabus a contract with my students. I have no intent to enter legal relations with my students. My syllabus is enforceable, within the discretion of law school officials (and university officials, if it comes to that) but not in a court of law. If I change my syllabus in ways that affect my students negatively, I expect they might complain to the administration(s). They cannot sue me.

Posted by: Jeremy Telman | Sep 4, 2020 3:19:51 AM