Terms of Service

Anette B.

Facebook’s Terms of Service set jurisdiction for litigation – We Are the People, Inc. v. Facebook, Inc.

A common mistake, and arguably a waste of time, is to attempt to bring a breach of contract litigation in a jurisdiction other than the jurisdiction that the contract states. Years ago I wrote an article about the importance of boilerplate terms. One of the very first points I discuss is choice of law/choice of forum clauses.

Most people who are entering into a contract read the contract before they sign their name. Curiously, this doesn’t seem to translate when people are signing up for a website or app. I actually wrote about this too, warning people that they are responsible for their own actions when it comes to website Terms of Service and that they should read them before they sign up. Alas, we’re all human and the only real time people tend to look at the Terms of Service (i.e., the use contract) is when the poo has hit the fan. Even then, the first thing most people look at (or should look at if they are considering litigation) is the choice of law provisions.

In this instance, Plaintiff’s brought a lawsuit against Facebook in the Southern District of New York alleging that Facebook’s removal of content from Facebook’s pages violated Facebook’s “contractual and quasi-contractual obligations to keep Plaintiffs’ content posted indefinitely.” Anyone who has ever used Facebook would likely realize that the “contract” being discussed would stem from their Terms of Service. Facebook filed a motion to dismiss based upon Section 230 of the Communications Decency Act or, alternatively, to transfer venue.

Why would Facebook want to transfer venue? Because arguably California has better law for them. California has a strong anti-SLAPP law codified at Cal. Civ. Proc. § 425.16 (which applies to many cases that Facebook is likely to be named in) and many Section 230 cases have been ruled upon favorably to platforms. As such, Facebook’s Terms of Service contains a forum selection clause that requires any disputes over the contract be heard by a court in California; more specifically, exclusively in the Northern District of California (or a state court located in San Mateo County).

As I see it, these Plaintiffs either didn’t bother to read that part of the Terms of Service or they wanted to roll the dice and see if Facebook wouldn’t notice (Pro-tip: fat chance of that working). Regardless of the rationale, on June 3, 2020 the court quickly sided with Facebook ruling that the Terms of Service forum selection clause was “plainly mandatory” absent some showing that such clause was unenforceable (which Plaintiffs failed to do and, according to the Court, could not do in this particular circumstance (given Defendants’ memorandum of law) and Facebook’s Motion to Transfer was granted.

Citation: We Are the People, Inc. v. Facebook, Inc., Case No. 19-CV-8871 (JMF) (S.D. N.Y. 2020)

Disclaimer: This is for general information purposes only and none of this is meant to be legal advice and should not be relied upon as legal advice.

Anette B.

Website Terms of Service: You Are Responsible for Your Own Actions

In my practice I write and review website terms of service with some regularity.  Most website Terms of Service have sections that relate to a users online conduct; that is, the rules that the website expects you follow when using their website.  If you don’t read anything else (because let’s fact it, unless you LOVE fine print, you probably aren’t going to read it) you absolutely should review the section that discusses what conduct is expected of you.  If you aren’t going to follow the rules don’t use the website.

Yes, this sounds like a no-brainer, right?  You’d think so, however, you would be fascinated to learn how many people don’t pay attention to these things and then, when they get busted breaking a Terms of Service rule, they come back and try to blame the website for the rule!  Um, no.  How about you try taking some responsibility for your own actions?  Yeah, let’s try that.

WHAT DO THE TERMS OF SERVICE SAY ABOUT MODIFICATION OR REMOVAL OF CONTENT?

Many websites will allow users to post content and then edit or remove the postings at a later date.  Consider sites like Facebook for example.  Other websites will give you only the ability to delete postings, but not edit, as seen with sites like Twitter.  At the same time many websites will not allow a user to edit or remove information once it is posted, regardless of the circumstances.

I typically see these no-removal rules often with complaint/review styled websites and this information is usually spelled out in the Terms of Service and, in some cases, elsewhere on the website.  Why would a website make such a rule?  Some websites claim that the reason they have a no removal policy, especially on a review/complaint type website, is because those websites believe that people will be bullied into taking truthful content down when the public really should be warned about bad actors or bad businesses.  I suppose the websites figure that if they have a rule against removing content, it doesn’t do the bad actors or bad businesses any good to harass the poster because the information is going to remain up anyway.  Yes, I know this opens Pandora’s Box for the “but what if…” statements and I know well the arguments against such non-removal rules, but I will not engage in that here because I’d be writing a dissertation and I’m trying to keep on topic and make this relatively short.

TERMS OF SERVICE:  WHY YOU SHOULD CARE.

Unfortunately, from my perspective, most people don’t care about these kinds of things and go on there merry way using a website, posting content, etc, – until they are threatened with litigation over something they posted.  Defamation is against the law and is actionable.  Most websites will make you agree, per their terms of service, that you will not do anything illegal.  They might even spell out that you have to tell the truth if you are posting a complaint or review.  Unfortunately, people either can’t read, don’t know what “truth” means, or otherwise don’t give a crap because they write stupid stuff anyway.  If you say something mean and untruthful online about someone else or someone else’s business – there is a possibility that you will see a defamation action against you.  Heck, even if what you say is truthful, you still could see a defamation action against you.  It’s the way the world these days – people sue over the most ridiculous stuff! Yes there are defenses to such claims, like the truth, however, if you use an attorney, it’s going to be legal battle that you will have to fund.

Typically a person considering litigation is going to go the easiest route and ask the person who posted the information to simply remove it.  If the person posted the information to websites like Facebook or Twitter, chances are one can just log into their account, edit or delete the content at issue, and be done with it.  HOWEVER, what happens when you posted the content to a website that specifies, right in their terms of service, that you can’t remove the posting?  If that is the case, chances are, that content isn’t coming down – even if you ask and regardless of the situation.

DON’T BLAME THE WEBSITE FOR YOUR MISTAKE.

Now we are getting to the ironic part.  A person will use a website, knowingly break the rules (such as posting false and defamatory stuff) and then, when they get a letter from a lawyer or a lawsuit against them, all of the sudden get concerned about what they wrote and will try to figure out how to take it down.  It’s like when you’ve been speeding, know you were speeding, and act all surprised when you get pulled over by a cop and quickly try to make an excuse for why you were speeding – as if that is going to somehow change the fact that you broke the law by speeding.  When an author gets a letter from a lawyer about a posting online the first thing they do is try to take it down.  In some instances they can remove the content…but that doesn’t always work as I explained above.  It amazes me how many people will write to a website asking for their stuff to be removed even when the terms of service, and the fact that someone can’t remove something after it was posted, was made abundantly clear before they made the posting.  When they get told “no” somehow that comes as a shock.  What happens next, in my experience, is one or any combination of the following:

  1. Excuses of why they wrote what they did.  The whole I was mad/sad/hurt shouldn’t have done it story.  This is what I call fools remorse.
  2. Allegations that “someone else” wrote it. People will literally allege that their “minor child” wrote the sophisticated well written posting about a business dealing. Uh huh, sure they did…and way to throw your kid under the bus.
  3. Stories of how the author/user of the website is “special.”  Most people that claim “special circumstances” aren’t all that unique when compared to anyone else.  I know your momma thinks you are special – but a website probably isn’t going to think so.
  4. Statements of “I wrote it.  It’s false…so you HAVE to take it down!”  No, actually the website doesn’t (at least under current federal law) and are you basically admitting that you breached the contract with the website that said you wouldn’t post something that is false?  Hmmm, that doesn’t seem like a very smart argument.
  5. I’m going to sue you if you don’t take it down!  Cool story – the current law doesn’t support your position and you are making yourself look like ass.  By the way, those terms of service that you agreed to by using the website or otherwise “checking the box” saying you agreed – yeah, that’s called a contract.

I wish I was making this stuff up but I have literally seen all of these kinds of excuses/stories made by people who are getting into trouble for what they posted online.  If you are one of THOSE people – you deserve to get into trouble.  The most ridiculous position that one can take is to be mad and blame a website for having known consequences to a rule THAT YOU BROKE.  That’s like being mad at the law makers who created the speed limit when you get into trouble because you broke the law by speeding!  No one made you speed.  Own the problems that you create.

Bottom line; read the Terms of Service before you use a website.  If you break the rules (especially if you are a harasser or defamer) don’t get mad at the websites for having the rules and consequences (that you failed to consider when you broke the rules) applied to you.  You have to own and accept responsibility for your actions – regardless of how hard of a pill that is to swallow. 

Until next time friends…

All information contained in this blog (www.beebelawpllc.blog.com) is meant to be for general informational purposes only and should not be misconstrued as legal advice or relied upon.  All legal questions should be directed to a licensed attorney in your jurisdiction.
Anette B.

Clicking the “I Have No Idea What This Says” Button

Understanding the basic differences between Browse-wrap and Click-wrap Agreements

Welcome to the age of technology…where everything you do is pretty much online!  You meet people online, you keep up with loved ones online, you post comments online, download software online, you purchase  online, etc.  For every website platform you interact with there should be some sort of Terms of Service (TOS) or Terms and Conditions (TAC) that you will have to agree to.

So yeah, that little box that you checked quickly so that you could move on and see more information, or download your favorite song, etc., that stuff is the important stuff that you just AGREED TO that NO ONE ever really reads.  Well, except for maybe a few of us contract lovers and people looking for the “easter egg” of comical interruption alleged to be contained within the long winded legal mumbojumbo.  Turns out, at least in my experience, those allegations are fake.  Rarely do I see any humor in contracts.  I know…so BORING!

There are typically two different types of agreements – the Browse-wrap and Click-wrap.

THE CLICK-WRAP AGREEMENT

The more common agreement, the click-wrap agreement (also referred to as a “clickthrough” agreement or a “clickwrap license”), is the one that I generally referenced above.  It’s the agreement that actually requires you to take some sort of action, like clicking on an unmarked box, to show that you agree to the terms set forth by the website or platform.  If you think about it, the website is literally placing the website’s TOS right into your hands (for reading) and asking you to acknowledge the agreement by “clicking the box” or whatever other form that assent may come in.  If you want to refuse the agreement (who does that?) then one would cancel or  close the window to the subject website.  Courts typically uphold these kinds of agreements so remember when you are clicking you are probably entering into a legally binding contract.

THE BROWSE-WRAP AGREEMENT

Your browse-wrap agreement (also called a browserwrap or a browse-wrap license) is the other version.  Generally your browse-wrap agreement is located somewhere on the website; usually seen as a hyperlink at the bottom of the page to the TOS or TAC.  There is no “clicking” to manifest their agreement to the website’s terms.  The idea behind this is that by a person’s mere use of the website they agree to the websites terms.  Courts have been reluctant to uphold these types of agreements UNLESS the user has agreed to the terms.

BELT AND SUSPENDERS

Most websites these days, especially where they are interactive, will have BOTH a click-wrap agreement and a browse-wrap agreement tied to their website.  This is done so that the website can inform users of their website’s TOS/TAC but also, for legal contracting purposes, to aid in enforce-ability of those terms.  Contracts, in order to be upheld, require mutual manifestation of assent.

If you are a website owner, you want to be sure that your agreements are protecting your interests and you should consider seeking legal counsel on the matter if you have any questions.  Beebe Law, PLLC is an Arizona based law firm representing clients in the state of Arizona.