And if this is a legal requirement, then service providers are greatly incentivized to require data transmission as a condition of using the service. If it's optional, then very few users will go into settings and enable it. If it's mandatory, then all users are going to agree, in order to use the service.
No services really requires data transmission. It's just the owners have decided to run it that way.
> I expect users will check the checkbox without reading any explanations, just as today they click "I Agree" without reading anything.
Within EU Data Protection law, you have to get "freely given, informed consent" for things. And a checkbox which links to 30 pages of legalese does not necessarily count as informed consent. Just because your users clicked a checkbox/clickthrough, that doesn't mean you're in the clear legally.
> if this is a legal requirement, then service providers are greatly incentivized to require data transmission as a condition of using the service
Unrestricted data transmission (and processing) is not legal in the EU. EU fundamental rights law specifies that. So you can't necessarily create a service which from the start requires that sort of agreement.
- You can only take as much as you need
- You cannot ask for data for one thing and use it for another
- You have to clearly state what data you will use for what purpose
- The opt-in has to be distinct from other opt-ins (so, 100 pages of EULA and then a checkbox "I accept" doesn't cut it)
The only problem here is that the penalities for breaking the data protection laws aren't very high .. I'd like to see percentages of a companies revenue.
Why? What if the "desired purpose" (desired by the company) is illegal? Then such a ToS/contract is not, and should not be legal. What the Data Protection agency is doing here, is saying that what WhatsApp/Facebook are doing is illegal.
> The GPL is much shorter than most click-through TOSs
The GPL is a copyright licence so doesn't require consent. It's a different type of "licence" from most ToS's.
My comment was badly worded. What I meant was that, if the license's meaning was disputed in court, the court should agree that it meant what the company intended for it to mean. And that is one purpose of unclear legalese in TOS. (Deliberate obfuscation, and increasing lawyers' fees, are also purposes, but not the only ones.)
> What the Data Protection agency is doing here, is saying that what WhatsApp/Facebook are doing is illegal.
It's saying WhatsApp didn't get the user's consent in a legal way. It is not saying that what WhatsApp wanted consent to is itself inherently illegal. My comment was about the general problem of meaningful agreement to online click-through contracts.
> The GPL is a copyright licence so doesn't require consent. It's a different type of "licence" from most ToS's.
It's the same in the relevant respect: that to use the GPLed software in certain ways, e.g. to install copies of it on many computers (which counts as copying), you have to do certain things outlined in the license. And since copyright law by default forbids such actions, the user has to read the license to know they can do it.
And my point is that sometimes what the company intends/wants is illegal. And the courts should
For example, a company might want employees to sign away rights to minimum wage. We can clearly see what the company intends in that contract, but the courts will not agree with it.
"Contracts are sacred and unbreakable" is an ethical/legal stance associated with libertarianism, and it is not what many countries follow.
