Wandering around the Borden Ladner Gervais LLP [1] website I noticed by chance a reference in tiny type at the bottom of the web page to a “Website Use Agreement.” Always curious about invitations to treat (or trick), I clicked the hyperlinked words and was taken to this page [2]. I should warn you now that in the view of BLG I have just committed a breach of our agreement, theirs and mine, and although I doubt that you are now, or will become during the course of your reading this blog entry, a party to this wrong, I must warn you that I am not certain of that fact. (We’re agreed that this is not legal advice from me, right? And that you read on at your own risk, right? Well, okay then.)
Clause 1 of the “agreement” and its teaser at the bottom of every page of the site say right up front that:
By using the Web Site, you acknowledge and signify that you have signed, read, understood, and agreed to be bound by the
Web Site Use Agreement.
Let me do a little bit of the pedantic thing and spell out my difficulties with this, though they’ll be obvious to everyone, I’m sure.
- I can’t get access to the agreement without using the website, so it cannot be the case that using the website means I’ve agreed; illogic is an argument in law as well as in life.
- How can using a website mean I’ve signed something? I know that so-called electronic signatures are possible — or, rather, that old statutory requirements for signatures can under some circumstances be met by acts involving the internet, but this is a bit too far. And besides, what does a signature have to do with anything here?
- This “teaser” is in very small type at the bottom of all web pages — something like 2/3 of the size of the body type, which may be a desirable thing for design, but only serves to perpetuate the “fine print” criticism of lawers.
- The “agreement” itself contains a whopping 3,586 words (a bunch of which are shouted at you in caps — because you’ve fallen asleep by the end of Clause 4?) — with lots and lots of lawyer language .
I won’t take you through the whole agreement; if you’re interested you can read it for yourself. But I want to touch on a couple of points.
A main thrust seems to be to forestall any claim that the site is or offers legal advice. This is a sensible anxiety for a law firm. I don’t practice so I’m willing to defer to those who do as to what does and what does not amount to advice — better, perhaps: when and when not there is a retainer the breach of which might lead to liability — but I should have thought that a simple disclaimer would serve, with no need for all that contract talk. After all, if you invite (propel?) viewers into the realm of contract, might you not bring them closer than need be to a contract that is a retainer?
Some material deals with copyright matters. But no agreement is necessary to spell out the terms of the copyright license given by the copyright holder, BLG LLP in this case.
Then there’s a pile of overreaching that’s just as silly as the illogic of Clause 1:
Clause 4 restricts use of the website to people over the age of 19 (who have the capacity to contract). But if I’m sixteen then we don’t have an agreement controlling my use of the site? And: “The Web Site may not be used by persons in jurisdictions where access to or use of the Web Site or any part of it may be illegal or prohibited.”
Clause 10 forbids linking to the website without permission — not “deep linking,” mind you: any linking at all!
And the very last sentence of Clause 14, the “agreement’s” final word in fact, has the effrontery to say: “The parties have expressly requested and required that this Agreement and all other related documents be drawn up in the English language. Les parties conviennent et exigent expressement que ce Contrat et tous les documents qui s’y rapportent soient rediges en anglais.” Why, yes, I can well imagine that a (20-year-old) visitor from Quebec would have “expressly… required” that the “agreement” be in English.
What was the idea here? BLG LLP is a great firm full of great lawyers, so it can’t have been the case that someone said, in effect, “We’ll just fling this puppy down on the site even though we know that half of it is… of dubious utility. After all, that’s what the public already thinks of lawyers — how they’re not particularly clear, modest or forthright. Not that anyone really uses the Internets anyway.” But what exactly was the detailed thinking here? How was this seen as a good advertisement for the firm?
BLG isn’t alone among law firms in publishing a website use agreement, of course. McCarthy Tétrault [3] has a tiny link to its “terms of use [4],” a mere 888 words. But neither is the practice universal, which seems to tell you something: if Torys [5], or Miller Thomson LLP, have one, for example, I couldn’t find it.