Do TOS Have the Final Word on Our Fundamental Rights and Freedoms?

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.


  1. Very interesting post, thanks.

    Some people may find that contractual terms of service that take precedence over legal rights are a bit like technical protection measures that prevent copying of information that copyright law would allow one to copy (because it’s fair dealing or some other instance of an exception/user right).

    The cases cited in this post as showing that the courts will enforce terms of service are generally ones in which there was an actual click on an “I accept” button. Other cases, such as those involving minors or amendment without notice, do not really depart from normal offline contract law.

    The harder cases are those where the terms of service are simply asserted on the web page somewhere, saying that use of the page – by reading it – indicates consent. Generally speaking those have not been enforced except against people who were clearly doing something illicit, like ripping off the information to compete with the site owner’s business.

    And the Drew case was particularly problematic because of the very nasty thing the defendant did and the horrible consequences, leading to a very big stretch in finding a remedy. Making violation of terms of use – a kind of contract – into a criminal offence is not ideal policy.

    I would be sceptical of a survey showing that more people communicate through social networks than by standard email. The volume of business email is still huge. That there is a trend in that direction, I have no doubt. But what the survey actually says is this:

    ‘Member Communities’ has
    overtaken personal Email to become the
    world’s fourth most popular online
    sector after search, portals and PC
    software applications.

    That is not quite the same thing as saying that more communications are made through social networks than through email.

    BTW Twitter is not a big outfit like Google. This morning’s Globe and Mail notes that Twitter has 45 employees in all, up from 25 at the beginning of the year – so not a lot of people to be drafting original terms of service rather than borrowing them a bit sloppily. And Slaw has noted earlier that there were at least two possible opinions on whether the change that got them into trouble was a good idea or not.

  2. Carol Lynn Schafer

    Thank for your interest in my post and your comments. Your comment that some people might compare the technical protection measures that are used to restrict copying of information and TOS that are used to restrict civil liberties is interesting. Although, some people might argue that there is a fundamental difference between the implications of restricting technical access to a copyrighted work and contractually restricting freedom of speech or expression.

    In many TOS cases, the courts do not appear to be departing from normal offline contract law regarding the clicking of the “I accept” button and this may be a reason for concern in itself. TOS play a large role in the governance of the Internet and following normal offline contract law when considering TOS may not address the distinct concerns of the online world. One of the concerns of the online world is users’ inability to negotiate the terms to which they agree. Some cases address this but not all. In the case involving the minors, the minors attempted to do just that – modify the TOS (to a program their were required to use by their school). Their inability to negotiate/modify the TOS resulted in the case cited.

    The Nielsen survey was restricted to personal email as the quote you cited indicates and I was remiss for not clarifying that in my post. It could be argued that the TOS of social networks are having a very different impact on business communications than personal communications and this impact would not likely involve restricting civil liberties in the same context that my post addressed.

    By large operators I was referring to the reach of the technology of Twitter and Google. The fact that Twitter is not a big outfit should not be a reason for a company not to take its contracts with its users seriously (or have the foresight to retain a lawyer to do so). Many web operators are small organizations (and some even aim to remain small like Craigslist) but that does not mean that their reach or their influence is any less. The immense leverage capability offered by the Internet changes the impact small companies can have on large groups of individuals. Whether the change Twitter made was a good decision or not is a bit of a red herring. The point was that Twitter was not comfortable following its own TOS because it had not taken the effort to review its TOS to determine if statements it made in it reflected the approach it would take in handling user disputes.