Informed Consent to Online Standard Form Agreements

Informed Consent to Online Standard Form Agreements
Rob Nicholls
Global Privacy Law Review, 2022; 3(3) pp 163-176
Abstract
This article examines the issues associated with online consent to ‘take it or leave it’ contracts, also known as standard form agreements. It does this by describing the concepts of standard form agreement and their deviations from bilateral contracts. It also sets out the meaning of informed consent. With these concepts established, the article analyses informed consent in online standard form agreements and provides an analysis of the factors impacting informed consent. The article also draws a distinction between unfairness and unconscionability. The article demonstrates that courts and regulators look the other way when it comes to recognizing substantive unfairness and unconscionability in online standard form agreements. It discusses the legal, economic, behavioural and social dynamics of informed consent in the context of the Australian marketplace. The article demonstrates that, in Australia, the focus on procedural unfairness and procedural unconscionability as threshold requirements have prevented the notion of informed consent from voiding particular terms. That is, as long as there was notice and an opportunity to read, in Australia the actual content of the terms seems to have limited importance.