(Ed Foster, GripeLine, Excerpts)---Wouldn't it be nice if there were a
law against abusive sneakwrap terms? Well, it turns out, there is.
Unfortunately for those of us on this side of the Atlantic though,
it's the law of the European Union.

This came to my attention recently when a reader sent me an e-mail
that customers of AOL France received in the summer. AOL France's
message announced a number of changes to its subscriber agreement, but
not changes it was making voluntarily. Having lost a lawsuit brought
by consumer organization called UFC, AOL France was removing 31
clauses from its agreement that a French court had ruled abusive.

Almost all the clauses deemed abusive by the court are ones that you'd
find in virtually any American ISP's terms of service. The offending
terms included AOL's disclaimer of all liability for service outages,
the customer's automatic acceptance of billing changes, AOL's right to
terminate the service without warning, and the practice of charging a
full minute of service for partial minutes. Also included was that
most classic of sneakwrap terms, the right of AOL to unilaterally make
changes to the agreement at its discretion.

The French court decision was based in large part on consumer contract
law that is EU-wide. "The underlying premise of the 1993 Directive on
Unfair Terms in Consumer Contracts is that the consumer's commercial
position is inherently weaker than the seller's, as regards both the
consumer's bargaining power and his level of knowledge of the
product," says the Morrison & Foerster report. "The Directive provides
that a contractual provision will be unfair (and unenforceable) if:
(a) it was not individually negotiated between the parties and (b) it
causes a significant imbalance in the parties' rights and obligations
arising under the contract, to the detriment of the consumer.

In UFC v AOL France, several clauses were struck down because they:
(a) were arbitrary and blatantly unfavorable to the consumer, (b) were
insufficiently precise - this lack of precision being favorable to
AOL, (c) allowed AOL to unilaterally modify the service to be provided
under the contract, or (d) constituted unjust enrichment."

http://www.gripe2ed.com/scoop/story/.../24/81120/8924

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