Monday, November 27, 2006

Getting ripped off by something that's free

I came across a disclaimer on a website recently, part of which read as follows:

"This Agreement shall all be governed and construed in accordance with
the laws of United Kingdom applicable to agreements made and to be
performed in United Kingdom. You agree that any legal action or
proceeding between [site name removed].com and you for any purpose
concerning this Agreement or the parties' obligations hereunder shall
be brought exclusively in a federal or state court of competent
jurisdiction sitting in United Kingdom."

According to the footer, it was generated free by a company called They have an invitation on the bottom to get your
own free disclaimer.

PriorityDigital have obviously taken a boilerplate disclaimer written
by a lawyer in the United States, and replaced every reference to a
state or a country with the country supplied by the person who wants
the disclaimer. In this case, the phrase "United Kingdom" was

Now here's the problem. There are no laws applying to the United
Kingdom as a whole. There is a legal system that applies in England
and Wales. There is another legal system that applies in Scotland.
Businesses that operate in England or Wales (or both) normally opt for
their agreements to be governed by the laws of England and Wales.
Opting for a legal system that doesn't actually exist, and that
betrays your ignorance of the laws applicable in your own country, is
probably not a good way of achieving legal certainty in your affairs.

There's another problem as well. There are no "federal or state
courts" of any jurisdiction, competent or otherwise, sitting anywhere
in the United Kingdom. In England and Wales there are county courts,
crown courts, high courts, courts of chancery, and probably others,
but no federal or state courts. England is a monarchy, not a
federation, nor a member of one, and is not a state in that sense. So
where exactly are you asking for your action to be heard?

This is an example of getting ripped off by free: using a free service
like this could end up being very expensive indeed. And I am sure that
the disclaimer that PriorityDigital had drawn up to protect themselves
from liability for use of their free service, has been very carefully
and very specifically drafted to protect them.


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