Exactly, that's also the most reasonable interpretation of the designation too. 'Terms of Service' literally -> the terms you need to agree with for us to provide you the service. No agreement or no adherence -> no service.
Yes, it's absurd - "terms of service" are not practically any different to the rules of any other establishment or service provider. Breaking the house rules is not breaking the law. It should get you kicked out, not arrested.
To be honest I think all of this stems largely from gross incompetence/ignorance among the people responsible for this sort of legislation.
Why would it not be okay to just ban people from your service "because you feel like it"? Given that you usually don't have any info on them which can be used as the basis of discrimination (and thereby sued over) what's left to worry about?
I would call that enforcement of a term of the service.
When I said arbitrary terms of service can't be enforced, I meant that the site owner won't have good luck trying to obligate users to do things (their typical response to a problem with the user will be limited to withholding access from the service). I wasn't very clear.
If you want a user to agree to something, you ask them if they agree to it and below that have two radio buttons labeled "Yes, I agree", or "No, I don't agree". Neither of them should be selected by default. You do this for every term you want them to agree to, not some general "Do you agree to these terms of service".
As long as you don't build this in a way that encourages people to mindlessly go through the list and click yes on all of them, I'd currently consider this, and nothing less, sufficient for informed consent.
I'd currently consider this, and nothing less, sufficient for informed consent.
You might, but it's doubtful that any court would.
For example, on a web site where you're taking real money in return for providing access to otherwise protected content, your terms and conditions would typically describe a contract, which the parties will enter into once you've offered those terms and your customer has accepted.
As such, the deal would be subject to the same safeguards as any other business-to-consumer contract. For example, here in the UK, there are some conditions that are automatically considered unfair and would not be enforceable, and for digital sales there is certain information you're required to provide at various stages in the purchase process or you risk the deal being challenged.
The flip side is that assuming your terms are reasonable and properly disclosed, they will normally be enforcible like any other B2C contract.
So how to deal with abusive users then? Hand wave and say it is okay to block them for certain actions that are not terms of service?
And of course arbitrary terms of service already can't be enforced.