| DEEMED CONSENT IN DIGITAL SERVICES: TERMS OF USE AND PRIVACY POLICY |
In my personal experience, it was not until I studied warranty disclaimers and limitation of liabilities in my contracts class that I started to think about actually reading those pesky little legal documents that come with products when I open their packaging.
At the risk of sounding presumptuous, it seems that not many people thoroughly examine the terms of use, or other legal documents that accompany the products or services that they purchase. Perhaps such presumable reluctance among consumers to sift through dense and dry legal documents before diving into the exciting experience of using newly purchased goods or services is one of the reasons behind Article 12 of the Act on the Regulation of Terms and Conditions of Korea. This article, subject to certain exceptions, nullifies any terms of use provisions that consider the mere act of starting to use goods or services as an implied consent to the terms of use.
In contrast, it is often found in the terms of use and privacy policies for online digital services in the U.S., a provision that says the users’ consent to these terms of use, or privacy policies, respectively, is inferred from their use of the services. However, there is a trend towards changing privacy laws and regulations, setting higher standards of consent, some now mandating explicit consent for certain uses of sensitive personal information.
In the case of Korea, as described above, an expression of intent by the user is necessary as evidence of the user’s consent to legal documentation for online digital services, usually done in the form of check-boxes. On a side note, it is possible that the service provider may also obtain consent by notifying its users individually saying that their consent will be assumed unless they express their dissent within a designated timeframe.
The above practice in Korea is guided by the Act on the Regulation of Terms and Conditions and the Personal Information Protection Act, together with their enforcement decrees, guidelines, and model terms and conditions or privacy policies set forth by relevant authorities, which closely dictate how such legal documentation should be drafted; the upside to these regulatory standards is that users are guaranteed by law with a chance to read the legal documentations prior to consenting; the downside is that, to meet all regulatory standards, these documentations are oftentimes lengthy, complex, and filled with legalese copied and pasted directly from the written law. These characteristics can make the documents less user-friendly, often leading to formats and wordings that are difficult for the average consumer to understand. As a result, there’s a significant risk that users will simply tick off their consent boxes without genuinely reading or understanding the content.
The critical question at hand, thus, is how to mitigate these downsides effectively. Perhaps the legal documents may be presented in a multi-layered format, beginning with a concise, clear summary of the essential points, followed by detailed explanations in subsequent layers for those seeking more comprehensive information. Perhaps the legal documents could also use interactive walkthroughs or quizzes to enhance user engagement and understanding. However, any actual implementation of these measures would then again be restricted by the time and resources available to both the service providers and the users. To navigate these complexities and obstacles, thoughtful deliberation, diligent effort, and ongoing communication with the business team members of the relevant service provider are necessary. Drafters of these legal documents must consider all these factors to ensure the legal texts are both effective and accessible.
[ Inquiries ]
