26
significant number of informed consumers in any given market to make an
informed decision on the terms of a standard-form contract, and that
while a substantial number, if not the majority, of consumers may remain
uninformed, the former is of significant size to discipline abuse by the
market (Schwartz and Wilde 1978). Extant research has found that
Internet users consistently do not read such click-wrap contracts. For
example, Bakos et al. (2014) found only 0.2% shoppers access a product’s
end-user license agreement for at least one second. As mentioned earlier,
this may be due to a combination of dependency and anxiety avoidance on
behalf of the cloud consumer (Weber et al. 2004; van der Werff et al.
2019). To counter this, policymakers have sought to mandate both disclosure of terms and conditions, and acceptance (van der Wees et al. 2014).
Notwithstanding this, research suggests accessibility and mandatory
acceptance do not result in significant increases in reading click-wrap contracts, and even those who have read the contracts, do not change their
decision or behaviour (Marotta-Wurgler 2012). While there is a paucity of
similar research on firm behaviour with regards to click-wrap contracts, it
is likely to be similar, particularly for smaller organisations. The reality is
accepting click-wrap contracts has become a habitual and an inevitable
part of cloud computing. By not reading the terms and conditions of these
click-wrap agreements, there is no incentive for CSPs to provide anything
more than the minimum legal requirements. As such, most cloud contracts are extremely one-sided (Bradshaw et al. 2013) and would not seem
to be subject to the informed minority rule (Schwartz and Wilde 1978).
The enforceability of electronic click-wrap agreements has been upheld
by courts worldwide for both business-to-consumer and business-tobusiness transactions, and for paid and free services, tending towards supporting the position of the service provider (see for example, Rudder v
Microsoft Corp, Caspi v Microsoft Network, and El Majdoub v CarsOnTheWeb.
Deutschland GmbH). The main arguments are both freedom of contract
arguments i.e. that clients have the opportunity to make themselves familiar with the terms and conditions and that they provide consent, and economic arguments i.e. rendering click-wrap contracts ineffectual, even
though one-sided, would disrupt e-commerce and not be in the public
interest.
T. LYNN
significant number of informed consumers in any given market to make an
informed decision on the terms of a standard-form contract, and that
while a substantial number, if not the majority, of consumers may remain
uninformed, the former is of significant size to discipline abuse by the
market (Schwartz and Wilde 1978). Extant research has found that
Internet users consistently do not read such click-wrap contracts. For
example, Bakos et al. (2014) found only 0.2% shoppers access a product’s
end-user license agreement for at least one second. As mentioned earlier,
this may be due to a combination of dependency and anxiety avoidance on
behalf of the cloud consumer (Weber et al. 2004; van der Werff et al.
2019). To counter this, policymakers have sought to mandate both disclosure of terms and conditions, and acceptance (van der Wees et al. 2014).
Notwithstanding this, research suggests accessibility and mandatory
acceptance do not result in significant increases in reading click-wrap contracts, and even those who have read the contracts, do not change their
decision or behaviour (Marotta-Wurgler 2012). While there is a paucity of
similar research on firm behaviour with regards to click-wrap contracts, it
is likely to be similar, particularly for smaller organisations. The reality is
accepting click-wrap contracts has become a habitual and an inevitable
part of cloud computing. By not reading the terms and conditions of these
click-wrap agreements, there is no incentive for CSPs to provide anything
more than the minimum legal requirements. As such, most cloud contracts are extremely one-sided (Bradshaw et al. 2013) and would not seem
to be subject to the informed minority rule (Schwartz and Wilde 1978).
The enforceability of electronic click-wrap agreements has been upheld
by courts worldwide for both business-to-consumer and business-tobusiness transactions, and for paid and free services, tending towards supporting the position of the service provider (see for example, Rudder v
Microsoft Corp, Caspi v Microsoft Network, and El Majdoub v CarsOnTheWeb.
Deutschland GmbH). The main arguments are both freedom of contract
arguments i.e. that clients have the opportunity to make themselves familiar with the terms and conditions and that they provide consent, and economic arguments i.e. rendering click-wrap contracts ineffectual, even
though one-sided, would disrupt e-commerce and not be in the public
interest.
T. LYNN