UNSW Allens Hub Annual Lecture with Nancy S. Kim

Please join us on Thursday, 21 September from 5pm to 7.30pm for the 2023 Hub Annual Lecture, 'TOS as Terms of Surrender' with Professor Nancy S Kim.

The Internet of today is the result of myriad influences, ideologies and compromises. But one of the biggest forces shaping how we act and interact online is often overlooked – digital adhesive terms. Typically labelled 'Terms of Service', 'Terms of Use', 'Terms and Conditions' and the like, and often referred to simply as 'TOS', the virulent spread of these adhesive terms has shaped online interactions for the past three decades. Although loathed by many, they have their defenders, who claim that they are efficient, critical to a sophisticated economy, and socially useful or, at least, benign.

But adhesive terms are not benign. In the form of the ubiquitous TOS, they have reshaped social norms, facilitated socially harmful business practices and undermined consumer protections. Far from being pesky but benign markers of our networked, digitally dominated world, TOS advantage companies that exist primarily online and allow them to wield enormous power. Click by click, deceptive online design and 'dark patterns' use adhesive terms to extract consent, manipulate consumers, and provide legal cover for companies to extract rights, and privately legislate rules that favour efficiency over fairness, quantity over quality, and corporate profitability over humanity. Billions of clicks later, the world is awash in fake news, misinformation, and a deepening divide between the economic haves and have-nots. The companies responsible have escaped liability, claiming users 'consented' and shielding themselves with their TOS.

We are once again on the precipice of mass adoption of a disruptive new technology with the potential to change the world – generative artificial intelligence. Once again, companies will deploy adhesive terms to shape and reset expectations, and to justify and normalise what we might now consider questionable, even unethical, business practices, products, and services. Without understanding how adhesive terms have justified past harms, we risk repeating our mistakes. We must no longer surrender to these terms; instead, we must reject them as contracts, and become active participants in, and architects of, the terms of our online engagement.

Meet our Speaker:

Nancy S. Kim is the inaugural Michael Paul Galvin Chair in Entrepreneurship and Applied Legal Technology. Professor Kim is an expert on contracts and emerging legal issues created by technology and she has written extensively on these topics. She is the author of the books, Consentability: Consent and Its Limits (Cambridge University Press, 2019); The Fundamentals of Contract Law and Clauses (Edward Elgar, 2016); and Wrap Contracts (Oxford University Press, 2013). She is currently working on a book, Death by a Thousand Clicks (Cambridge University Press, forthcoming), which discusses how adhesive terms, such as Terms of Service, shape society. She has been cited by federal courts, legal treatises, and in media outlets such as the New York Times, NPR, the Los Angeles Times, and Popular Mechanics.

Professor Kim graduated Phi Beta Kappa from UC Berkeley, received her law degree from UC Berkeley Law where she was an associate editor on the law review, and received an LL.M. degree from the UCLA School of Law where she was a Ford Foundation Fellow. Kim was also a Women’s Law and Public Policy Fellow at Georgetown University Law Center.

Professor Kim is a member of the American Law Institute, a member of the permanent editorial board for the UCC, and past chair of the AALS Section on Contracts, the AALS Section on Commercial and Related Consumer Law, and the ABA Subcommittee on Commercial and Consumer Contracts.

Event Information:

The talk will be held from 5:30pm - 6:30pm followed by networking.

This event is run by the UNSW Allens Hub for Technology, Law and Innovation and will be hosted at Allens, Deutsche Bank Place, Level 28, 126 Phillip St, Sydney NSW 2000.

Any queries about this event, please contact the event organiser, UNSW Allens Hub Administrator via AllensHub@unsw.edu.au