Terms of Service at the Top of 2011

As noted here last month, blogger Eric Goldman points out the folly of expecting to be able to amend your terms of service without telling users, while yet expecting a court to enforce your new terms.

The caselaw is simply developing along common-sense lines: find a way to let your users know you are changing the rules.

Users expect you to change the rules. Courts expect you to tell your users when you do.

I mentioned last month what Bob and I see our clients doing in this regard, but I thought I'd take a moment and check in on the social media platforms I use, to see how they say they will keep users informed of changes.

Here's what Facebook's privacy policy says about changes:

"If we make changes to this Privacy Policy we will notify you by publication here and on the Facebook Site Governance Page. If the changes are material, we will provide you additional, prominent notice as appropriate under the circumstances."

That last sentence, which I marked in bold for emphasis, has been added at some point in the last 8 months. So score one for Facebook. It may not be promising you a letter by overnight courier, but it's undertaking to come to you somehow and not expect you to keep checking the terms or the governance page.

Twitter's statement on this point, from its TOS:

"We may revise these Terms from time to time, the most current version will always be at twitter.com/tos. If the revision, in our sole discretion, is material we will notify you via an @Twitter update or e-mail to the email associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms."

But Twitter hasn't changed this language for over a year. Count it a leader on the point. If you're a longtime Twitter user, no doubt you have gotten a few email notices from Twitter of changes to TOS or the privacy policy.

My newest and favorite social media service, Path, is still a laggard. In spite of having a cooler UI than either Facebook or Twitter, Path's TOS is positively dark ages on the amendment point:

"We reserve the right to change or modify these site terms or any policy or guideline of our site, at any time. Any changes or modification will be effective immediately upon posting of the revisions on our site, and you waive any right you may have to receive specific notice of such changes or modifications. Your continued use of our site following the posting of changes or modifications will confirm your acceptance of such changes or modifications."

Well, Path will catch on one way or another, most likely!


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