Digitized Terms: The Regulation of Standard Contract Terms in the Digital Age

Abstract

Digital transformation is also transforming standard contract terms. With the emergence of online platforms, supported by algorithmic data analysis and self-enforcing technologies, platform terms are becoming increasingly common. The article argues that this type of terms differs from traditional standard terms in a number of ways, and it considers whether the existing unfair contract terms regime is still appropriate. The regulatory tools once developed for standard terms in bilateral agreements – transparency requirements, fairness review, and restrictions on contracting around – seem inadequate to meet the new challenges of digital transformation. In order to preserve – or rather recreate – the architecture of choice for private contracts, the paper argues for a new regulatory strategy: In order to strike the right balance between protecting private autonomy and avoiding significant imbalances, the regulatory objective should be to ensure the impartiality of platforms by focusing on the structural conditions of their rule-making.