Image by Gerd Altmann, on Pixabay.
By James Myers
Capturing our attention drives massive profits for tech giants like Alphabet (which owns Google and YouTube) and Meta (which owns Facebook and Instagram). Alphabet’s 2025 profit was a world record-smashing US$132 billion, while Meta recorded a US$60 billion profit.
Data is the commodity that drives profits for these companies and, increasingly, for others like Apple, Amazon, and Microsoft. Last year, advertising targeted at Alphabet platform users generated almost three-quarters of the company’s US$403 billion revenue, and advertising comprised nearly 98% of Meta’s US$201 billion revenue. With every Google search (amounting to 90% of web searches globally), every YouTube download, and every Facebook and Instagram post, our data becomes a commodity that is sold to advertisers and others, including governments and data brokers.
It’s commonly held that services like Google, YouTube, Facebook, and Instagram are “free”. But while we don’t pay cash for access, the currency we pay is our data. With every bit of data that we pay, we become advertising targets. It’s a decidedly one-sided exchange in favour of the platforms, enabled by laws that have not adjusted for the realities of the digital age.
Take, for instance, contract law. How many of us read terms and conditions, and privacy policies, before clicking “agree”? Who has time to read and comprehend the 4,773 words of Google’s privacy policies for Canadian users, or similarly lengthy agreements for the myriad of other apps we use daily? How many realize that agreements like these, written in legalese few are equipped to understand, allow use of our data without reasonable compensation?
But the “agreements” go beyond that. Often they waive legal rights, pledge to settle disputes in jurisdictions and manners favourable to the companies, indemnify corporate affiliates, and consent to a host of other provisions unfavourable to the consumer. For example, Uber and Disney defended themselves against lawsuits by individuals who unknowingly waived rights in unrelated agreements with affiliates Uber Eats and Disney+.
When giant tech companies can afford armies of lawyers to draft endless provisions, how can we ensure fair and balanced treatment as customers? Why should these contracts be enforceable, when practically nobody can understand them?
For decades, governments have been derided as inefficient and ineffective, but as attention capitalists have gained the upper hand we should be looking to government for its ability to protect consumers. Before we surrender our location and other personally identifying data, waive legal rights, and allow third-party data-sharing, shouldn’t we understand what we’re doing?
Here are a few examples of measures that governments could take to even the playing field.
A law could require that broad-based agreements, called “contracts of adhesion” because consumers have no ability to modify them, be delivered in clear terms that the average user can understand. The key provisions of such contracts, like data ownership and the sale of data, should be unambiguous. Make the agreement as long as you like but provide consumers with a clear list of its key provisions, limited to one or two sentences each, and the agreement becomes enforceable. Otherwise, a click on “agree” is meaningless and unenforceable.
Such a law might be worded simply, for example: “No consumer contract of adhesion shall be enforceable unless any of its terms that limit consumer rights are described at the outset in such language and at such length that informed consent can be reasonably provided by an individual lacking legal training and independent legal advice.”
Courts should bar platforms from using or selling data obtained from minors, since it is a longstanding legal principle that only adults are permitted to enter into binding contracts. Companies should be held liable for misappropriation of user data unless they can provide both the name and age of the user who has entered into the contract. In many cases, companies do not obtain even the name of customers who click “agree.”
Laws should recognize that payment in data is equivalent to payment in cash. Consumer protection laws for cash-paying customers should extend to users of services like Google, YouTube, Facebook, and Instagram. Ontario’s Consumer Protection Act, for example, provides that contractual ambiguities will be settled in the consumer’s favour, places the onus for proving consent on the seller, and allows class action lawsuits by consumers.
Another consumer protection measure that governments might consider is a requirement for companies acquiring data under contracts of adhesion to fund independent legal advisors for consumers, as a class, to interpret agreements and the risks of entering into them.
The practices of attention capitalism have rapidly evolved, while laws have failed to keep pace. New legal principles aren’t necessarily required. For starters, governments should apply existing laws to new realities like data’s value as a commodity. Consumers deserve such clarity to restore balance and fairness in contractual relationships with giant tech companies.
