Can Children Really Sign Contracts for Internet Services - Essay Example

Are the Terms Of Service For Facebook binding on a15 year old child living in New South Wales Who has signed up for a Facebook account? Should such acontract be binding on such a child? Name University Date Introduction Social media and particularly Facebook has become so necessary that it’s somewhat a shock when one comes across a person who doesn’t really own a Facebook account and still claims to be a social being, and in fact, ownership of Facebook accounts has become so ubiquitous that even children are presently as likely to be spotted signing up for an account, and play ‘Angry Birds’, one of Facebook games, like no tomorrow1. Which expediently leads us to the core point of this paper: can the Terms Of Service on Facebook bind a child aged 15 years who is living in NSW (New South Wales)? The latest applications on Facebook are obviously a desirable feature for most people, and children are undeniably not immune from the enticement of the latest applications2. Additionally, perhaps we have also probably read/heard/ seen the disgust stories involving some minors who have entered contracts, and being charged exorbitant amounts of money and suffer from their ignorance3. However, can children really sign contracts for internet services? This paper shades more light to this question. The law in New South Wales in relation to capacity of minors to enter into contracts Section 8 of Minors (Property and Contracts) Act 1970 (NSW) defines a minor as someone below 18 years. As a general regulation of NSW, a minor cannot be bound by a contract unless as stated in the Act (s 17)4. One of the basic precepts of the contract law is such that a person – normally someone above the age of 18 – ought to have capacity to enter in a binding agreement by just having knowledge of the terms and conditions of contract5. Nonetheless, in nearly all jurisdictions, the law does not consider minors as having the permissible capacity to enter in a contract, except if that agreement which has been entered in by a minor is considered as a “necessity”6. Fascinatingly, New South Wales (NSW) is the only State which grants the right for the minors to enter into all sorts of contractual relationships7. The right is provided with a back up force through the Minors Property and Contracts Act only by the proviso that a contract which has been agreed to is in fact for their benefit.   Facebook had recently permitted teens aged 13 and above to post statuses and updates in public8. The move has already elicited widespread fear over online safety. Surprisingly, they have often thought of opening their doors to teens under 13! These are considered minors according to NSW contract law. In deciding validity of the minors entering contract, New South Wales considers a number of things when doing an assessment, such as: how the service is utilized the age of the minor the nature of that service  the minor`s economic and social and status whether the minor has previously entered into any contractual agreements. If it`s established that the internet service (signing up for Facebook) is considered a necessity, then the contract might be judged as being binding. However, New South Wales`s stand is a little bit different when determining whether a contract entered in by the minors is enforceable; New South Wales by now grants a minor a capacity to be bound in a contractual agreement however, making a determination on validity of a contract still depends on an examination of whether or not kids have benefited, or were advantaged from the utilization of the service. Thus, a 15 year old minor who has signed up for a Facebook account and lives in New South Wales can still be bounded by Facebook Terms Of Service. Australian Commonwealth law in relation to ‘click wrap’ agreements associated with ‘signing up’ to services online One of the methods of online contracts, which are more practical for several purposes, is the "click wrap" agreement that is made over the Internet. The click wrap agreements are created by a customer accepting to adhere to the terms of agreement on-line by just pointing and clicking the mouse. If the minors cannot lawfully enter into a contract, is it possible for them to legally click "agree" button on terms of use on Facebook and still be allowed into these sites? The answer is an obvious yes. Facebook has exploited this loophole and proceeded to allow minors on their site even though they cant lawfully enter into contract with Facebook; praise or blame it on click wrap agreements. However, all is not out of control as the Australian courts are expected to scrutinize the visibility and the centrality of this agreement, the choice for the users to reject or accept the terms being presented, as well as clarity of the terms9. Moreover, the Australian courts will also consider establishing contract principles. For the unsigned contracts, users will require to be provided with a notice of the terms and terms of particular importance must be offered in a manner which gives them emphasis. Terms of online services in Australia consist of law and regulation at both the State and Commonwealth level, perhaps because the constitution of Australian does not appear to give either level of the government enough power to fully and independently regulate online content10. The Australian Commonwealth law applies to the Internet Service Providers also called ISPs and Internet Content Hosts (ICHs), but it does not apply to content providers or creators or even ordinary online users. The law demands that Australian ISPs and ICHs should erase content from their servers which is considered "objectionable" or "unsuitable for the minors" upon receiving a take-down alert from the Australian Communications, the government regulator and Media Authority (ACMA). However, there is certain form of weight of authority from Australian commonwealth law`s jurisdictions that the click wrap agreements are actually enforceable if structured in some way. In appraising above-mentioned cases, the following provisions should improve the possibility that on-line contracts can be enforceable11: License or contract terms should be showed to the potential users on the website; The customer ought to be asked to reject or accept those terms by just clicking on buttons saying "I do not agree" or "I agree"; The customer must not be allowed to use the services or purchase the product except if he/she has showed acceptance to be bound by terms of the contract; The contract must include a warranty or representation that a party entering into contract is certified to do the same on behalf of some entity they are pursuing to bind thereto; and The terms of the suggested contract must be measured in contrast to traditional contract principles. The prominent case on the click wrap contracts in Australian context is the eBay International Ag v Creative Festival Entertainment Pty Ltd (2006) FCA 176812. The overall principles that emerge from this case were that the following are needed for the formation of the click wrap contract: clear notice to customers that the transaction is overseen by the terms of the contract; a chance for customers to review terms of standard form contract prior to agreeing to them; and an unambiguous and clear statement of whatever constitutes acceptance of terms of the contract. Provided these conditions are satisfied, the courts are most likely to enforce such a contract, subject to online user’s protection exceptions, and as such, minors aged 15 and living in New South Wales may still find themselves legally bounded to Facebook Terms Of Services if at all they sign up for Facebook accounts through click wrap agreements. The idea of freedom of contract and my opinion on it The doctrine that states that individuals have the right to lawfully bind them is referred to as the freedom of contract13. The freedom of contract is simply a judicial concept that holds that contracts are anchored on free choice and mutual agreement. Thus, contracts should not be hindered by external regulator such as governmental intervention14. This is a principle which supports that individuals are capable of fashioning their own relations by the private agreements, as opposed to the assigned functions of the feudal system. A freedom of contract encourages two closely related, but two unlike concepts15. Firstly, it shows that contracts were anchored on mutual agreement. Again, it stresses that the formation of a contract is the result of the free choice unconstrained by external mechanisms such as the legislature or the government. Contract law is among the fundamental institutions which underpin the market system. Generally, it is not habitually understood that the governmental and religious regulations which underpin agreements draws a very long history16. Thus, it is not regularly realized that the above reference from the Ten Commandments denotes not to the expressing of obscenities, but to the practice of oath taking in the primordial Israel that, among other things, assisted in enforcing of contractual arrangements17. A firm view of the contract law in form of the principle of freedom of a contract is a crucial element in the social fundamentalist rhetoric18. It`s necessary, therefore, for the critics of the social fundamentalism to arm themselves with certain understanding of the root of this principle and how it arose and then deteriorated as part of nineteenth-century opinion on social theory as well as the laissez-faire economic doctrine19. On this account we now turn to an investigation of the emergence of freedom of contract law in the end of nineteenth century in UK and United States. It is shown that this principle has its roots in the breakdown of the medieval concepts regulating economic and social life as well as the emergence of a social contract concept as a basis for clarifying social order and also for justifying property rights of elite20. Natural law, the gradual secularizing of the tradition, and the natural lawyers also heavily influenced the progression of the principle. Many philosophers and socialists used the idea of a contract as the fundamental explanatory scheme in explaining or justifying the society`s bounding to social order21. The principle of freedom of contract is thus central to conceptual framework in which socialists and, in particular, social fundamentalists operate22. Though it might be possible to create and conclude contracts via online due to the principle of freedom of contract23, however, in my own opinion this concept of freedom of contract which entice and permit the minors to enter into contracts should be accompanied by certain restrictions, perhaps from the government, regarding the minors who enter into these contracts24. The restrictions should not just be formed in a standard manner where one party makes the offer so that other accept or reject, but should also put age limit to both parties. As in most Commonwealth jurisdictions, there can be an introductory stage of explaining eligibility of parties to enter into contracts25. It should be suggested that businesses guarantee that their online contracts are not binding for the minors rather than stating a customer is then bounded to a contract just by clicking on an “accept” button. Conclusion Terms Of Service For Facebook is obviously binding for the minors at age 15 living in the New South Wales (NSW) Who happen to have signed up for an account on Facebook because there exist loopholes in the contract law26. NWS and the Australian governments have acknowledged the potential which the internet promises, specifically in a country with unique features of Australia (low population density, advanced economy, and large geographic area)27. However, while these governments have acknowledged this potential from a perspective of investment, a blind eye has generally been directed towards internet restrictions since they have not done so much to address the special features of the internet with regard to regulation28. In many areas, these governments have attempted to treat internet in a similar manner to other service and content delivery mechanisms. Nonetheless, this has not been with any consequence and has occasioned the law relating to the internet concerns developing on a hugely ad hoc basis in most areas29. There are suggestions that Internet technology will inspire a rapid and intense expansion of the regulation practices30. Read More