Too often, online services draft their “Terms of Service” (TOS) agreements in ways that are one-sided and overreaching. In Europe, however, regulators are beginning to step in to protect consumers. In late November, the U.K.’s Office of Fair Trading (or OFT)
“>announced that Apple, Inc. agreed to change the terms and conditions for its popular iTunes online music store in the United Kingdom. In particular, according to the statement from the OFT, the changes make the iTunes terms “clear, fair and easy to understand,” and, more importantly, give consumers “clear and accurate information about their [] rights in case things go wrong.” The OFT took action following a similar intervention by the Norwegian Consumer Council.
In the U.S., by contrast, there has been little regulatory attention paid to protecting consumers from overreaching TOS agreements. Thanks to a history of deference to “freedom of contract” in the U.S., along with a dearth of consumer protection laws that apply to online services, U.S. consumers often lack adequate protections from unfair “terms and conditions.”
On this point, a comparison of the new U.K. iTunes TOS (“U.K. Terms”) and the original U.S. iTunes TOS (“U.S. Terms”) on which they were based is illuminating. While the majority of the language in the both versions is identical, the differences between them are important, and illustrate that service providers can make things more fair for consumers, if they are forced to do so.