Bait and switch

A magistrate judge in Texas has granted summary judgment in a case involving unfair and deceptive on-line terms and conditions. In FTC v. Think All Publishing, the FTC alleged that Think All buried relevant terms and conditions in various contractual documents to which customers were required to agree. The end result of these terms and conditions was to require customers to purchase software from ThinkAll when they were promised free software. The marketing pitch - free software - was negated by the legalese - users paid for software not returned within a short period of time.

The FTC brought its enforcement action pursuant to its authority to prosecute unfair and deceptive trade practices. The key issue in this case was that the interaction between the various terms and conditions set out on the website and on the product packages. The end contract was so confusing that consumers could not reasonably be expected to understand that they were signing up for products they had to pay for.

Understanding this issue is crucial for web hosts and is particularly important to reinforce with your marketing department. I would question the legality of marketing promotions that are so complicated and convoluted that creating them requires several paragraphs of legalese to make them work, or make money.

Based on this case, it seems clear that companies should resist the temptation to create a complicated set of contractual conditions where various terms and conditions in one place are contradicted or superseded in another. A clear set of customer expectations and obligations really should eliminate a substantial amount of liability simply because your customers are clear on what they're getting, how much they are going to pay for it, and the limits of your obligations.