Tactics of the ToS
As we all know the Terms of Service (ToS) and Terms of Use agreement has become commonplace on websites as a means to govern the way these sites are to be used and the rights to user submitted content are to be handled. From the small forum based websites receiving traffic in the range of 10-20 unique visitors per day to the large social media sites serving millions of visitors in the same period of time one often overlooked similarity is almost guaranteed to exist, the all too often gigantic legal monster known as the Terms of Service agreement. These agreements are, much like End User License Agreements (EULA) skipped by the majority of visitors even if a mechanism is in place to try and encourage the visitor to read them. With headlines in recent history involving ToS terms however it may be in the visitors best interest to read these agreements and see for themselves the lengths some websites will go to when trying to impose terms and conditions upon their users. These terms and conditions are often largely overstepping the boundaries of common sense and sometimes go as far as to violate the rights and freedoms of the user, this is especially common where the terms within the agreement are pertaining to user submitted information and content.
From the age requirements in Google’s ToS as pointed out here, the issue over their Chrome browsers ELUA here and the uprising over the Google Maps API ToS here one would think that large corporations would think twice before changing their Terms of Service or End User License Agreements but apparently the social media giant Facebook didn’t get the hint, as seen here.
Google has always been quick to fix their ToS agreements and EULAs when under pressure from the masses but Facebook and other sites seem to do just enough to fool a large percentage of their userbases into thinking the issue has been resolved. Lets not take their rebuttals at face value and keep in mind the possibility that they may just be cash generating machines with possible ethical and moral issues, with that in mind we can move on to the reality, legality and understanding of Terms of Service agreements.
The first thing to to keep in mind is that everyone needs to read the ToS of a site before using it, I know the scroll ‘n click without reading method is popular but it may some day land you in hot water if you continue to use said method. Terms of Service agreements are often thought of as fragile in a legal sense and because of such many technologically gifted internet users believe that they can bypass reading them due to the fact that they didn’t physically sign anything to state they agree. The problem with such mentality is that in a legal sense in most countries and jurisdictions by using the site it is assumed that you agree to the terms governing that use, it is up to you as the user to read and understand them. This is often the case whether the agreement is a clickwrap type or a page requiring no actual interaction to bypass.
Their are instances however when clauses in a Terms of Service contract are not legally binding, this does not automatically mean all clauses in the ToS are void and can be broken but it can mean that a possible action against a user could be proven illegal in a court of law depending on what clause the justification for said action fell under. An example of such a ToS agreement made news around the web in 2006/2007 when Marc Bragg sued virtual reality giant Linden Research and eventually settled out of court. Though this did not set a legal precedent it did show that when a ToS is a contract of adhesion it is not legally binding. One must remember that contract law is contract law no matter if it is online or off. If an online contract imposes terms which would not be legal in a paper contract than they won’t be legal in one online, this extends to your rights as a human being and your rights to possessions (rights to data are iffy at best so you better hope you get the right judge).
The biggest issue with most ToS agreements is that they are overly lengthy and fraught with legal jargon not to mention the use of repetition within which I personally believe shows that these legal departments have the view that mere mortal website visitors could not possibly understand a ToS clause and must be treated like children. The use of this jargon along with the aforementioned length and repitition is often employed to create an element of confusion and even encourage the reader to skip over the agreement and just click the “I agree” button. For that reason it is recommended that you look up any terms in the contract you do not understand just as you would with a paper contract before signing it. One way around some sites terms of service is to license pictures and other content to someone else before making it available on a website, however some online agreements safeguard against this by disallowing such content to be posted within their website. Remember when you do not agree to the terms of any contract it is best just to walk away, by not using a specific website you probably aren’t losing out on much but by agreeing to a strict Terms of Service agreement you do not plan to follow you may be opening yourself up to future legal recourse and a high level of financial loss. I am not a lawyer but this is how I see it based on past cases and a great deal of research.
Conclusion? Read every ToS agreement before using a website because you never know just how far someone may go to defend it. The web isn’t quite the wild west some people seem to think, your actions can land you in a courtroom.
Leave a Reply