We need new laws. Not the vague hodgepodge we have now. Policies designed to not be read need to be considered completely invalid. This credit card charge should be treated like any merchant taking a card and then charging £100 more than expected. Fraud, theft, some mild form of racketeering, whatever that falls under.
I think the most common abuse of this sort is "out of contract" telecom charges where using 2X the contract number of minutes or data could result in over 10X (often over 100x) the cost of the original contract.
I'm not sure how exactly the laws need to work, but there is obvious stretching of the systems well past the point of ridiculous. An iphone privacy policy or a hotel "sign this" agreement is not free actors contracting freely.
Also, the sooner "pull" payments become a rare exception, the better. If hotels need some sort of escrow, then it should be an escrow.
We are about to shell out ~£15k to a recruiter who sent us the CV of someone (completely cold, without the person's consent, or us having any relationship with them) we hired via another recruiter, but a year down the line are pressing a claim, as in their contract, receiving an email from them is deemed acceptance.
This is apparently perfectly legal in the UK, and I'm considering starting a business which simply sends spam, with T's and C's in each email which state that by receiving the email you have agreed to become a paying customer, and to pay any fees we demand for "the service", which is receiving the email, which allows you to know that your email is working. The intent of course not being to be another scammer, but to get the law changed.
If the situation is as you describe, sending unsolicited email and then charging you for receiving it (that's essentially what you're describing) when you have clear evidence you hired via the prior contact with another agency (they have that documented, right ?) is something which can be easily fought - albeit in court with some initial costs if they're going to be ass-ish.
You would win both your case and the legal costs if things are as cut and dried as you suggest.
However, if you replied to the unsolicited email (establishing you saw it) and there is no evidence of the prior agency being before that, you have a more difficult case. My personal experience of two agencies being involved was that the agencies sorted it out amongst themselves how to split the single fee which was paid to one of them - this was in the UK as you seem to be.
Only an experienced lawyer familiar with the details of your situation can properly advise you. I'm curious that you've been advised to settle if you've consulted a lawyer and appraised them of the situation you describe. Normally lawyers like slam-dunks like this.
My experience is recruiters don't send unprompted candidates because, without a prior agreement/contract, they will have difficulties in establishing they made an initial introduction and hence qualify to get paid. Otherwise they can just mailbomb you with millions of name variations and claim they introduced you to everyone on the planet and you owe them $$$$$s. [I think you realize this with your 'proposed' new business venture. ;-) ]
Probably not enforceable -- but it'd be hilarious if having a no-bad-review clause in your T&C made you liable to, for example, the Flappy Bird developer.
For a contract to be valid, four things are necessary: an offer, an acceptance, a consideration, and an intention to create a legally binding relationship.
You can't accept a contract just by reading it: you have to take some action indicating your acceptance. Normally this would be by communicating it, but in the case of unilateral contracts (e.g. software licence agreements), it can be by some other action such as clicking an "I agree" button.
I'd guess that what is going on here is that the recruiter is trying to argue that you've indicated acceptance of their contract by hiring the guy. I'd guess that a paper trail to another agency would give your case some weight, but I'd guess that YMMV on that one.
This is why non-trivial companies have HR departments. The way they get round this one is by having clear disclaimers on their jobs/contact pages repudiating any liability for unsolicited CVs. Here are a couple of examples that I've come across - KPMG: http://www.kpmgcareers.co.uk/experienced-professionals/agenc... Cargill: http://www.cargill.com/careers/notice-staffing-agencies-plac...
I think this is a good example of how the current approach is broken. The "consumer protection" approach which basically deems clauses as valid or not is much weaker for businesses.
With regards to very long contracts, and without meaning to defending all instances of them (since some are clearly just meant to obfuscate), how do you separate a contract "designed to not be read" from one that honestly tries to cover all edge cases and explain exactly what the terms are?
Some products - like the iPhone - are very complex. It's not easy to describe what information is gathered, with whom it is shared and how you can withdraw your consent, for each feature (Location, Siri, messaging, calls, etc) without a very long document. What do you propose they should do?
With Siri, I don't propose anything. I am simply stating the obvious. As an owner of an ipad, I have not really agreed to anything with Apple. They are pretending like we have an agreement, but we don't. If people really needed to read and understand the terms and conditions, 99% of people would not have updated the OS and Apple would have to change the way they do things.
Maybe they just need to make the information available and not get my consent. Maybe some feature require consent and so can't be pushed to my phone without an action on my part. I don't know what the alternative is.
I do know that this agreement between me and Apple is much more like an agreement between Apple and a 6 year old then the one between me an my employer. In the real world, it is not a contact. My click does not really denote agreement.
http://ec.europa.eu/justice/consumer-marketing/rights-contra... http://eur-lex.europa.eu/legal-content/EN/ALL/;ELX_SESSIONID...
I think before you can determine if a contract is fair, you need to determine if a contract is even a contract. If a standard contract is "agreed" between some company (Apple, this hotel, etc) and all of their consumers and some unacceptably high number of those customers don't now the content of this contract, I think it should be considered what it is: nonsense on a piece of paper.
These contracts are so blatant that it doesn't even matter what the thresholds are or how they are determined. The way these "contracts" are set up to be agreed to by people who haven't read them is so flagrant, it's unmistakably contemptuous of the whole idea of an agreement.
I think this is key. The law assumes that contracts are a big deal for both parties, that they are relatively rare, and that they're given attention on both sides.
But it's hard to get through daily life anymore without signing a ton of contracts. Software update for your phone? Contract. Sign in to some random online service? New T&C I have to agree to i.e. contract. Pay for something with a credit card? That's a mini contract you're signing.
Now, in some cases there's no real excuse for not reading a contract. To take a random example, if you sign up for a two-year contract with a cell phone provider and you're given a stack of paperwork and you sign without reading through it first, I'm comfortable saying that's on you. This isn't something you do often and you have ample opportunity to read the thing first.
On the other side of things, Apple keeps tossing these gigantic contracts my way whenever I do much more than breathe. I'll literally get fifty or sixty pages of contract when trying to download a software update or just sign into the store after they made some random change to their T&Cs. Nobody reads these things. I know it, you know it, Apple knows it, and because of that they should be strongly limited in what they can do.
I think an important test for a contract should be asking the hypothetical question, "what if everyone who signed it read through it in detail first?" For something like buying a house, this would obviously change nothing. For a cell phone contract, it would change little. For random gigantic software EULAs and web site T&Cs and similar things, it would drive all the customers away. If having everyone read through it before signing it would break the process the contract was made for in the first place, the contract shouldn't be valid.
And that isn't an endictment of congress critters and judges. They are of us, selected by us. To say, "we need a new legislature" is to say "we need completely new people." They are the way they are because we have made and allowed them to be that way.
Now, I agree that the laws we have and the legislature we have are objectively bad. But I have come to admit it is because we have a bad culture. We live in a world trapped in a Prisoner's Dilemma over pillaging our neighbors.
Credit card charges that are pull-based are generally a bad thing, but not all pull-based payments are bad for consumers. For example, the Direct Debit scheme in the UK requires the consumer to be notified 5 working days before payment is taken, and the consumer has the right to get a refund from the bank without dispute; it is then the bank's job to go and get the money bank from the merchant. This latter feature in particular is important, and should be implemented for credit card pre-authorisations as well.
This is a symptom of legal liability running the governments and corporate world.
Change the culture and this problem will go away. Not an easy task.
What you're actually asking for is the legal system to intervene and invalidate certain types involuntary agreements. Which I would agree with. What we live in is in fact a culture of excessive insulation from legal liability! 99% of all those "contracts designed not to be read" that the parent poster complains of, those TOS you have to agree to just to use hardware you paid for, those are designed to make you to sign away rights you have under tort law.
Now, we make dozens of 10k word (or 100k word) agreements every week that no one understands. It would cost thousands or tens of thousands to understand them. You can't read them all and even if you did, you would find that being the odd one out in this regard left you unable to get a hotel room, phone or read a newspaper. So, we lean on standards, norms, consumer protection laws and to keep us safe from these damned contracts.
Common law (or my lay understanding of it) suggests that there is grounds for completely invalidating a "contract" which no one expects any one to read. If either party don't know what they're agreeing to, it's not a contract.
I'f you hand me a one page, large font bullet pointed list of things to agree to, that is something you expect me to read. If you hand me a 40 page small print book while I'm standing at a counter with people behind me, it's obvious what is going on.
The fact that you write a contract (the policy) doesn't mean that contract is actually legal.
For an example of this, see non-compete clauses, for most types of employees in California.
Even if you sign it that part of the contract will be considdred null and void - and you can efectivly ignore it as teh UK's stutory rights take precedence.
Under the UK Consumer Credit Act, when a credit card charge of £100 (or more) is made, the credit card company becomes 'jointly and severally liable'. A charge for a bad review also falls foul of UK Fair Trading legislation which means the couple can pursue the credit card company for the unfair trade breach and reclaim their money that way. Credit card companies don't argue in these cases and refund pretty damn fast (from experience) and just charge-back the business (so they lose the £100 and have additional charge-back fees of around 25% added on top).
If the hotel charged £99.99 instead, it would be a very different story and would need the Trading Standards people at the local municipal council to take action. (They already stated they will be regardless of the refund since these are unfair trade practices.) A refund would happen but would take longer and may well need a local county court action.
https://www.gov.uk/make-court-claim-for-money/overview
They could get free legal advice from Citizen's Advice. http://www.adviceguide.org.uk/wales/law_w/law_legal_system_e...
But just reclaiming the money via credit card companies is probably easier.
I'm curious about why the people leaving one and two star reviews are not also sending reports to trading standards / environmental health. If the public areas are dirty I dread to think what the kitchens are like.
So basically I don't know what got into their heads when they thought this is a good idea, either. At the same time, though, I wouldn't be surprised if this is not an illegal clause per se. If they charge a hundred pounds for structural damage to their hotel, or theft of towels or so, it would make more sense, and if they consider a bad review to be damaging, it isn't even that far fetched. I think they should know better than to do something stupid like this at the end of the day, however.
Also don't know which way the EU swings on this, my guess would be towards the German position.
The classic notion of a contract as an expression of the compromises forged in a battle between two sophisticated, represented parties has been replaced by overlawyering, boilerplate, and clickwrap.
http://abovethelaw.com/2010/06/do-lawyers-actaully-read-boil... (Judge Posner is perhaps the most acclaimed US jurist not on the Supreme Court - a "Law and Economics" pioneer who can roughly be described as libertarian)
What's the solution? Hold consumers responsible for every detail of wordy documents they didn't have the time to read, much less negotiate? Make companies bear the costs of every complaint - real, imagined, or fraudlent - a consumer can dream up? Companies can be cheap and sneaky, and consumers can be petty, stubborn, and stupid.
In the EU, not all contracts that you read and sign are legal, e.g. if it's a contact you can't influence, and it significantly alters the balance of rights to your deteriment.
That's refusing you service and extortion.
The "another hotel" might be 100 miles away, in which case it also costs you money.
It's a bit of a culture shock when you see the sharp difference in this respect from how the US treats contracts, at least it was for me.
On both sides you have people saying that the business world will collapse if you treat contracts the way that the other side is treating them. I'll refrain from saying which side I think is right, but I guarantee you that these differences are strong and real.
B2B transactions do have more emphasis on following the rules of the contract, as two businesses are seen as being on a more "even playing field".
B2C transactions, however, rely heavily on consumer protection legislations (Sale of Goods Act, Supply of Goods and Services Act, Unfair Contract Terms Act), which recognise that most consumers do not read contract terms at all. In addition, there are a number of regulators and public bodies whose sole purpose is to provide free legal advice, and to fight cases on behalf of the consumer. Hell, there's a ton of morning television dedicated to hunting down dodgy builders and shaming them publicly.
My point is that contracts aren't as integral to everyday life as you assume, and most people will freely sign them in the knowledge that any bad terms are mostly unenforceable.
And really, both here and there, contracts are treated more like guidelines than actual rules. What you agree on with a handshake matters far more. Especially with contracts under 5 figures because enforcing them would be way too much hassle and in case anything goes wrong it's easier to just write them off as cost-of-doing-business and move on.
That said, there is protection for consumer contracts. In the UK you have the Unfair Contract Terms Act that protects consumers against businesses attempting to discharge liability to negligence. Europe wide you have the Unfair Terms In Consumer Contract Regulations which prevents businesses from inserting onerous terms into contracts with consumers that are not 'individually negotiated' (eg. almost every contract that a consumer signs without using a lawyer).
So a nearly 15 year old company with a billion dollar revenue still qualifies as a startup?
>> The situation couldn't have occurred without a service like them
Freedom of speech infractions have occurred for way longer than online services have existed.
So if someone tweets something stupid/political it should be posted on hackernews as well, simply because tweeting wasn't possible prior to twitter? Or what if someone reacts badly to something on tumblr, is that relevant for hn'ers as well in case they are trying to innovate in the micro-blogging space?
Please don't submit comments complaining that a submission is inappropriate for the site. If you think something is spam or offtopic, flag it by going to its page and clicking on the "flag" link. (Not all users will see this; there is a karma threshold.) If you flag something, please don't also comment that you did.
Recently the same thing occurred with a New York Hotel, where they were fining $500 per bad review.
Which is pretty much "community bookmarking site 101".
There were 147 bad reviews before the story broke and these bad reviews are the majority.
I'm curious about the dupe detector not spotting duplicates.
https://news.ycombinator.com/item?id=8629113
https://news.ycombinator.com/item?id=8629117
Edit: this link is to the mobile site; one links to .com and the third links to .co.uk
Blackpool is a classic example of a seaside resort that's been badly hit by cheap package holidays to the sun.
As such you can expect it to be full of hotels hanging on by their fingernails.
Also it's known to have lots of social welfare bed and breakfast establishments.
You'd need to be living under a rock in England not to know that.
If you're just going from A to B and want a stopover you're better off going with one of the chains. I actually like premier Inns.
One of the travelodges I stayed in though was as depressing a dump as I've experienced.
Partly. Other resorts have managed to reinvent themselves, but the perception I have is that our local tourism trade took things for granted, didn't innovate and assumed there'd still be millions of overnight visitors to cash in on.
It's a very parochial place and despite all our problems and examples like this popping up periodically, as a town we still seem to maintain a collective belief that it's a great place to live/visit and "everywhere has its problems", with Blackpool just being hard done to.
http://www.propertysales.com/Listing/Burlington-Road-West-Bl...
For a 40 bed hotel!!
A chip van turns over more than that.
Most people underestimate the difficulties of a business/customer care, etc
Our sentiment analysis algorithm indicated this is a negative comment. You have been charged $100. Thank you for staying at HN.
All kidding aside, I'd say that yes, HN should be a place for exposing reprehensible business behaviours such as these.
It is even of general "hackerly" interest - like a bad growth hacking technique.
Whatever the HN community votes up, HN is "the place for it".
i) intense but shallow
ii) deep
and that intensely shallow topics should be avoided where possible.
I'm really bad at this. I comment on too many topics that are intensely interesting when I should just ignore them. (I do however try to upvote all the interesting and technical stuff).
Thank you internet (Yelp, Tripadvisor) for putting them to shame!
From the CNN article:
"Please know that despite the fact that wedding couples love Hudson and our Inn, your friends and families may not,"
Guardian article: http://www.theguardian.com/uk-news/2014/nov/19/tripadvisor-c...
“Despite the fact that repeat customers and couples love our hotel, your friends and family may not.”
Seriously, making a mistake for the first time is one thing, but seeing the shitstorm that ensued after that and repeating it is another.
No wonder the political parities no longer hold their conferences (conventions) at the winter gardens.
edit: actually, no need for internet justice, already there are 147 x 1 star reviews - the most recent stating "don't go there" and "lacking basic cleanliness"
Contracts have effect in influencing human behavior partly because once in a while a court will enforce a contract against a party trying to weasel out of the contract. But when courts get involved, general constitutional, statutory, and administrative law is brought to bear on the terms of the contract. A court may be very reluctant to enforce a term of a contract that doesn't allow a customer to complain about a company's service. That could be regarded as "against public policy," and public policy can be a judicial ground for NOT enforcing a contract. Moreover, a contract binds its parties, but doesn't bind outsiders who didn't enter into a contract, so a news organization like the BBC can report, "Slimy company attempts to sue its customer for letting consumers know that the company gives bad service," and the contract will not stop that. Parties to form contracts often ask the moon, but the party that drafted the contract language will usually have the terms construed in favor of the OTHER party if the contract is litigated. So I don't worry about this. I look over form contracts as I sign them (as, for example, when I buy an airline ticket or check into a hotel or rent a car) but I also stay aware of actual business practice as experienced by consumers as I buy products and services as a consumer. My most powerful recourse, always, is not to give a slimy company any repeat business, and to tell all my friends through every channel I have that I did (or did not) like a particular company's product or service. Anyone can do the same.
AFTER EDIT: By the way, this is an international news story that I heard on the radio while I was just on a morning drive here in Minnesota, and the latest update is that the hotel has agreed to refund the "fine." I'm trying to find a news story on the Web that verifies that.
http://www.itv.com/news/border/story/2014-11-19/hotel-fines-...
Or a novel way to get a bad review splashed all over national media. Did the hotel really think this was going to end well?
There's a contract system in place, and it may work fine for people who have the incentive and the resources to look over them (mergers and acquisition deals, house purchases), but a lot of the time the document is very long and written in legalese.
How many people are really going to hire a lawyer to read their Apple Store or World of Warcraft terms? Writing a hugely lengthy contract is simply a way to discourage you from reading it, and then pretending that you've agreed to whatever the terms are. I guess there's some help from the legal system - ridiculous clauses are thrown out - but that doesn't address the fact that you are discouraged from reading about relevant information.
I think someone must have written a post about how long it would take to just read the everyday ToS type docs that we're presented with. And South Park did an excellent episode about this (The Human CentiPad).
Being in a contract doesn't make something legally binding - what if they put "if you leave a bad review we reserve the right to shoot you?"
I'm curious how that will play out. It's surprising how well the credit card system seems to work, when it relies so heavily on trust.
