Social networks and their Terms of Service (TOS) have been at the centre of current online debates about free speech and hate speech on the Web. Recently, Facebook had to determine whether holocaust denying groups within its pages should be removed. For the moment, Facebook has removed certain groups which violate its TOS but allowed those who do not violate its TOS to remain, citing Facebook’s commitment to the protection of free speech. This demonstrates that as the Internet becomes a greater part of our social communications, TOS are taking on a more influential role in our society. Already, they have become an integral part of the body of rules that govern blogging, networking, social interactions, virtual experiences and information dissemination on the Web.
TOS are impacting the very rights and freedoms we as individuals enjoy while interacting and communicating in the Internet environment. Online debates about Facebook’s TOS have not been limited to hate speech. Facebook also came under scrutiny for determining which rights and freedoms a user can exercise while online when it relied on its TOS to remove photos of mothers’ breastfeeding. Facebook argued that any photo which exposed a nipple or a full breast was indecent and violated its TOS. Despite Facebook’s stance, which mothers around the world have protested, it is actually legal to breastfeed in public in many countries, including Canada, the U.S. and Britain. On the other hand, it is unlawful to promote holocaust denial in many countries in Europe. As such, Facebook is facing criticism from both fronts: for standing up for free speech by refusing to remove Holocaust denial groups that do not violate its TOS and for limiting freedom of expression by removing breastfeeding photos which do violate its TOS. Facebook’s ability to enforce its TOS in the face of opposing laws, and instead, counting on the views of its users, its advertisers and its own self-importance, demonstrates the power that social networks have amassed regarding the enforcement of civil liberties. Appropriately, Facebook’s new TOS has been dubbed its “Bill of Rights”.
Despite the importance that TOS play in the governance of the Web, TOS are not treated as serious legal agreements as often as they should be. Two very public instances of borrowed TOS have shown that TOS often are viewed as standardized agreements. After the “beta” launch of Google Chrome, users were outraged that the rights to all user-generated content “submitted, posted or displayed” would be retained by Google. After issuing a revision to this policy, Google admitted that it had borrowed the copyright provision from the TOS of one of its other products without taking a close look at its applicability. Google apologized that it “overlooked this”.
Similarly, after Twitter became embroiled in a dispute with one of its users about messages that the user wanted removed, it admitted that it was more of a communications utility than a community and did not want to mediate user conflicts. However, its TOS had not been written this way as it had “been inspired” by Flickr’s TOS, a website that considers itself more of a community and does remove questionable content. Twitter admitted on a blog post that “Yes, we probably shouldn’t have borrowed Flickr’s TOS. Like a lot of startups, we threw something up early on and didn’t give it a lot of thought. Our bad.. If large operators like Google and Twitter are publishing TOS without considering their applicability, it is terrifying to imagine how many other sites are in the same situation.
Meanwhile, the courts have been left with the responsibility of determining how contract law applies in an online setting. TOS have been found to be enforceable in both Canada and the U.S. The lower courts in the U.S. have gone further and considered the enforceability of TOS against minors, against users who are not notified of modifications to the TOS and against users who are logged in under another individual’s account. However, the most controversial decision concerning the enforceability of a TOS is United States v. Drew.. In this decision, a woman, Lori Drew, who set up a fake MySpace page to harass a young girl, which allegedly resulted in her suicide, was convicted of criminal fraud under the federal Computer Fraud and Abuse Act for intentionally violating MySpace’s TOS. Drew’s attorneys have stated they will appeal the decision, if a motion for direct acquittal, based on lack of proof that Drew knew the TOS existed and intentionally violated them, is not allowed. In the meantime, legislators are reacting to the case and scrambling to pass anti-cyberbullying laws, laws that free speech advocates argue are too broad. The inadequacy of current laws to deal with the realities and consequences of actions such as harassment on social networks is demonstrated by this decision – a decision that makes it a federal crime to intentionally violate a TOS. While debates continue as to how to address th. inadequacy of current laws, TOS will continue to fill the gap.
Considering the crucial role that TOS play in the governance of the Internet it is important to note that there is a fundamental difference between the interests of governments who propose and pass laws, and corporations who draft and publish TOS. Corporations draft TOS to restrict liability, mitigate risk and, ultimately, to promote a certain image to its users and its advertisers. Yet as social networks take on a larger role in a our society – a recent Nielsen survey indicates that more people communicate through social networks than email now – social networks are playing a larger role in determining which rights and liberties of individuals are enforced and denied. This makes the contracts between users and website operators that much more powerful. TOS must be drafted with the bigger picture in mind and can no longer be seen as standard agreements that can be treated with a one size fits all approach.