My understanding is that web site terms and conditions are a form of contract. To form a contract a "meeting of minds" must occur in many jurisdictions. There are many situations where a computer will do all the technical actions without any human being directly aware of the specific contract.
In such a situation has a contract been formed? Some examples where this could come up:
- The specific example that prompted this question is the news that Windows has installed HP Smart App on users who have no HP equipment without any user interaction. This has a Terms of Use that give HP significant powers, particularly with respect to data gathering and processing. Has a contract been formed here? Does it make a difference who made the mistake (HP, Microsoft (probably not a party to the contract) or the user)?
- Browser plugins can be installed without the user interacting with the software distributor. Software like the DRM management and silverlight (decades ago now I guess) are the ones I am well aware of, one I had not heard of popped up the other day. These tend to be accompanied by a "If you install this you agree to the TOS" popup generated by the browser. Obviously I am not aware of installing one without this popup appearing, but assuming it has happened (perhaps because of a bug in an open source browser) was a contract formed?
- Browser extensions exist to avoid unwanted popups. These are particularly popular for avoiding GDPR cookie accepts. It is quite possible for these to accept a TOS for a website without the user being aware. Would that count as a contract?
- Web crawlers would take the same action as a human viewing a browserwrap licence, and could appear to agree to a license by downloading the target of an "I Accept these terms" hyperlink. Note I have read the 6 questions of this search and none address the contract issue.
- With the proliferation of AI chatbots in customer service and their tendency to "hallucinate" it is conceivable that a chatbot could say something to a customer that if said by a human would be an offer of a contract. In such a situation if the offer was accepted would a contract have been formed? What if the chatbot was encouraged to do so with "prompt engineering"?
Any jurisdiction would be interesting, as the internet is global possibly all jurisdictions are relevant.
As well as the search results above, the question "Can a computer program agree to Terms of Service? is vert similar, but the emphasis is on "Corporate Personhood" and related concepts. It is conceivable that a very broad reading of the final line of the accepted answer could apply to all my examples, and all the contracts would be void. However it is not clear to me that the answer justifies such a wide interpretation. An answer saying it does, perhaps with real world cases to justify the interpretation, would be a good answer.
