Can Terms of Service Agreements Allow Companies to Skirt Consumer Protection Laws?

This system has functioned with surprising efficiency during a period of explosive growth, and at this point nearly all e-commerce depends on users agreements to contracts virtually no one has ever read. Courts are well aware of that dynamic, and many have commented on it, but have largely upheld these kinds of agreements based on traditional contract law principles. The "click" of agreement, or the ongoing use of the product or service, functions as the user's agreement to the Terms of Service, regardless of whether the user knows precisely what the Terms say. Contracting parties are assumed to have reviewed and agreed to all terms of their agreement.

One result of this setup is that the legal framework governing the relationship between the consumer and the company is not necessarily what the consumer would expect it to be. Many of the laws that might otherwise govern that relationship are replaced by the Terms of Service. For example, many Terms of Service agreements include arbitration clauses and prohibitions on class or collective actions. Users who might otherwise have a legal right to be a part of a class action in court must give up that right if they want to use those products or services. In some ways (knowingly or unknowingly) they are agreeing to give up some of the protection than the law would otherwise provide, because the company demands that concession in exchange for the use of its product.