September 6, 2016. Dangers of agreeing to ‘unfair’ terms and conditions without reading. This article by Tegan Atkins on New Zealand broadcaster website Newstalk ZB discusses a study by Alexandra Sims, associate professor and head of Commercial Law at the University of Auckland Business School. Sims studied the terms and conditions of more than 30 businesses to see if they comply with what is apparently a recent New Zealand law that requires terms and conditions in consumer contracts to be reasonable. (The article does not cite or link to the law.) It seems from the story that the New Zealand law would apply to EULAs, but it also clearly applies to other business-to-consumer contracts, like the contract between an apartment dweller and an electric utility.
Sims found that few of the businesses had removed unfair terms after the law became effective. She chalked this up to the fact that enforcement of this law occurs only if the country’s Commerce Commission challenges a business’s practice. In the absence of Commerce Commission action, even ‘unfair’ provisions must be enforced by courts against consumers. Sims suggests that the law should be changed to be similar to Australia’s, which provides the consumer a direct means of enforcement. (The article does not cite or link to that law, either.)
A little research by REUL Lab turned up these additional facts:
- New Zealand does have a law that prohibits “unfair contract terms”: the Fair Trading Amendment Act 2013.
- The Commerce Commission of New Zealand enforces the unfair contract term (UCT) provisions of the Act. It has published its UCT guidelines in a consumer-friendly PDF. According to the guidelines, the UCT provisions do not permit consumers to bring complaints about UCTs; rather, the CC must bring them.
- According to a publication of the Australian Competition & Consumer Commission, the Australia Consumer Law went into effect in 2011 and prohibits UCT in business-to-consumer form contracts. It is not limited to EULAs.
Technical communication researchers and teachers might find the New Zealand and Australia government publications interesting for study in the EULA problem-space.