Online T’s and C’s – shown to be pointless as 7,500 literally sell their souls

In hilarious news from UK retailer GameStation updated its T’s and C’s on 1st April as an April fools joke adding an ‘immortal soul clause’ and since then 7,500 have accepted the following:

By placing an order via this Web site on the first day of the fourth month of the year 2010 Anno Domini, you agree to grant Us a non transferable option to claim, for now and for ever more, your immortal soul. Should We wish to exercise this option, you agree to surrender your immortal soul, and any claim you may have on it, within 5 (five) working days of receiving written notification from gamesation.co.uk or one of its duly authorised minions.

and better still:

we reserve the right to serve such notice in 6 (six) foot high letters of fire

The company made the change to illustrate the serious point that nobody reads online terms and conditions – something made clearer in this example by the fact that customers were given the option to opt out of the ‘immortal soul clause’ and instead receive a £5 voucher – something very few people did.  In fact, due to the number of people who took advantage of this offer GameStation estimates that 88% of people didn’t read the T’s and C’s.  Their Terms and Conditions are here, still containing the immortal soul provision.

My question, which I’ve raised before, is whether any court will enforce these documents, given that everybody knows nobody reads them?

For some reason I can’t find that old post now, but I recall that either Barry or Danvers from Bootlaw replied saying that the law is very clear in this area and that therefore site owners don’t have anything to worry about.  I’m still not so sure about that, particularly if someone suffers through misuse or leakage of their personal data in a way they didn’t expect and the court thinks is unreasonable.

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  • At the end of the day people just want to use a piece of software and know that if they don't accept Ts and Cs, there's no alternative – unlike in this case.

    When using consumer software/websites users Ts and Cs to be roughly equivalent to common sense. Anything beyond that can simply keep users at bay, as people who actually read Ts and Cs will spread the news regarding any counter-intuitive clauses they may find.

  • Hi Joao – I'm not sure that the word does get spread if the T's and C's are out of line, except at the very biggest sites. Isn't this example evidence of that?

  • Maybe website size isn't the issue, but how easy it is for users to communicate among themselves and how active their community is? I would expect smaller, niche websites with a passionate user base to be much more at risk of user backlash than larger, more commodity websites.

    I'd say that in this particular example, being April Fools, you wouldn't expect the word getting around in a similar fashion as if an abusive clause had been detected.

    Early website adopters, who tend to have some expertise on the website's area of interest, tend to act as referrals for other users. I don't know how well users would rely on early adopters to have performed their “due diligence” on what concerns Ts and Cs, but that might unconsciously be the case: “If they are using it and they're much more into it than I am, why would there be a problem?”

  • Ts&Cs are often enforced by courts but as an aggrieved consumer you could try and argue that you are not bound if they are hiden away in a small font. Most sites go for on sale click to agree terms and conditions which are likely to be enforceable. As a consumer you are also protected by various statutes which could override certain unfair contractual terms or cover you for poor service (or giving away your soul). This is why site owners use a lawyer to advise upon the contents of ts&cs, risk and user paths.

    Personal Data is more likely to be covered by a site's Privacy Policy than ts&cs and be subject to the Information Commissioner Office's regulations. A consumer might have some Human Rights or contractual arguments if personal details got sprayed all over the web due to a leak but that is far from clear and would in part depend upon interpreting the site's ts&cs. The ICO has long complained of limited powers so you may be struggling to find recourse if your personal info until those powers are increased.

    DYOR and get legal advice!

  • Thanks for the helpful clarification Paul.

  • Hello Nick!

    I think I must have been referring to the Swimming Pool case: http://www.bailii.org/ew/cases/EWCA/Civ/2009/71… in which the High Court found that disclaimers in terms and conditions were effective – but in that case there was no debate as to whether the user of the site had read them – he admitted he had done so.

    Generally, online terms and conditions can be used defensively (as in the example above) but it would be pretty hard to argue that a customer is under some sort of unexpected positive obligation to a company as a result of clicking through an “I accept” button.

    Also, the recent case involving Foxtons (http://www.bailii.org/ew/cases/EWHC/Ch/2009/168…) supports the idea that your terms and conditions need to be consistent with your marketing, which is why I would always advocate having an holistic process when producing website content, terms and conditions and any relevant FAQs.

    We might to a Bootlaw session on Terms and Conditions… let me know if you want to come along.

    Danvers

    PS – I am definitely going to incorporate the “six foot high letters of fire” wording into a notice provision soon…. classic

    PPS – I have found your original post and my comment, through the wonders of Disqus: http://www.theequitykicker.com/2009/12/14/inter

  • Thanks Danvers, and good to see you last night. The Foxtons example is interesting and seems to me to fit with common sense. I would come along to a bootlaw session on T's and C's if I was able.