privacy international european-union gdpr regulations
Can the terms of service contain a clause that instructs a user to forfeit their rights under the GDPR?
<p>Suppose an American company wishes to do business with European parties.  Could their terms of service say that as a user of their services the user forfeits any rights afforded to them by the GDPR and more importantly how would European Union courts and American Courts see this clause?</p>

<p>Also can the Terms of Service say that if "You" are from any country in the European Union, do not continue using the services of the site?  If this is done and someone from the European Union still uses the site, does that then legally negate the GDPR rights afforded to them?</p>

<p>Just want to note that I think the GDPR good thing and I'm doing everything I can to comply with it, but I'm also structuring everything as defensively as possible.</p>

<p>It is not possible for someone to forfeit their rights because the GDPR is compulsory law.</p>

<p>In the EU, laws can be regulatory or compulsory. </p>

<ul>
<li>In case of an agreement, regulatory laws can be set aside, if both parties agree on that. </li>
<li>But compulsory laws cannot be set aside. </li>
<li>Of course laws can also be partly compulsory. For example provisions which cannot be changed in disadvantage of a consumer.</li>
</ul>

<p>So there is <a href="https://en.wikipedia.org/wiki/Freedom_of_contract" rel="noreferrer">freedom of contract</a>, but it's freedom is reduced by law for the common good or for example to avoid misuse of bargaining power.</p>

<p>In particular consumer related laws are often compulsory because it has little power against the other parties. Companies can have their negotiations done by lawyers, so they can make a well informed an well negotiated decision.</p>

<p>As an extreme example, you cannot kill someone, even if that person has given you written permission. See also <a href="https://en.wikipedia.org/wiki/Peremptory_norm" rel="noreferrer">"Peremptory norm" on wikipedia</a> for international law examples.</p>

<p>Contracts cannot override the law. If it were possible for a contract to negate any and all laws that the drafting party didn't like, there would be no point in much consumer or general protection law at all.</p>

<p>It is possible to say that you will not serve customers from the EU, but having done so without knowledge, you're still obliged under EU law to adhere to it, unless and until you remove the customer and any information you can't keep from your system.</p>
