Consumer law for the info highway
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AbstractThere are clearly some things that will never be bought and sold on a large scale by way of the Internet. These include groceries, furniture, homes and many services. We will want to inspect, feel, trust and negotiate. Despite the availability of custom fit jeans on the web, one still cannot try the jeans on before buying them. Novelty and convenience will rarely compensate for these interpersonal consumer preferences in the contracting process. Standardized low touch transactions like billing, banking and ordering CD's are conducted more efficiently online. Direct marketing is a $13 billion a year business in Canada. Collecting personal information from consumers has never been easier. It is impossible to drop in for a discount haircut today without having to disclose one's names, address, and telephone number. The business usually assures one that this is for the benefit of the customer, but it is more often for the future use of the business. This continuously updated information can be stored indefinitely and cross-referenced to produce consumer profiles of needs, lifestyles, and preferences. The unsolicited envelopes in the mail informing us that we "have been specially selected to receive a one-time offer ..." have been joined by unsolicited telephone calls and unsolicited emails to the same effect. Click through formats ask the consumer to scroll sequentially through contract terms and signify acceptance of them by clicking on an indicated button. There is no law yet on the general validity of this acceptance method. Since the legal concern is whether the parties have a meeting of the minds, it is likely to be adopted by the law, subject to any concerns of reasonable clarity in the terms that the consumer purports to accept. One notes that click through transactions are the take it or leave it kind. There is no easy opportunity to get immediate clarification of, or to negotiate, a term. There is enormous temptation for businesses to dump reams of written material on the web that they deem binding on each consumer. The law struggles with balancing interests in these standard-form contracts of adhesion in the face-to-face context. The potential is greater for more egregious abuse of this kind of contracting power in e-commerce.
Article deposited after permission was granted by the editor of LawNow magazine, 06/28/2010.