One of the founders of the plain English and simplification of contracts movement, Alan Siegel argued today that the Internet uproar over Facebook’s decision to change their terms of service will impact future online and offline contracts. I think it will definitely change online contracts, but I doubt it will change traditional paper contracts.
Mr. Siegel said, “At a time when there is a call for transparency and honesty in all sectors of society and business — online and offline — clearly Facebook showed an initial lack of sensitivity to the interests of their 175 million users when they changed the terms of the privacy provisions in their terms and conditions contract. While they put a note on the company blog that said the company ‘simplified and clarified a lot of information that applies to you,’ users were not asked to agree to the new terms or even alerted by e-mail about this rather significant change. Facebook merely added this line to their terms: ‘Your continued use of the Facebook Service after any such changes constitutes your acceptance of the new Terms. This generated such a strong negative reaction from Facebook users that Facebook announced they were reinstituting the terms of the original agreement.”
Siegel concludes that Facebook’s about face will lead other companies to change the way that they communicate with their users/customers, “This about-face clearly demonstrates the power of the Internet that will force companies to communicate with clarity in their contracts with their customers. Companies will no longer be able to hide behind impenetrable contracts that provide unfair protections or conditions. It looks like the Internet and its legion of bloggers will be the stimulus for an upheaval in legal communications that is long overdue. This Facebook uproar will transform online — and offline — contracts. The days of consumers blindly signing whatever is placed before them are clearly over.”
I think that Mr. Siegel is overly optimistic. The Facebook case was unique because of the number of users that Facebook has and the change to their TOS that amounted to them taking over ownership of what you post on your account, but even at its peak this wasn’t some sort of wide sweeping revolution. The Facebook group against the change only has 130,000 members which is less than one tenth of one percent of their users. What I view this outcome as is a victory for the power of the Internet community. Maybe only 1 percent users were vocal about the change, but they did a fantastic job spreading the word.
Why Facebook changed their minds was that this became a mainstream media story. When networks like CNN picked up the story, Facebook had to back down or face a public backlash, and a PR black eye, personally I use Facebook, but I send links to friend, or the occasional message, but I don’t post anything that I consider of value there. The Facebook saga should be a lesson to all social media sites that what the users give, they can also take away.
I think there needs to be a new law about how and in what manner sites can notify their members of changes to the TOS. Honest companies will send an email explaining the change. However, more dubious under the radar practices are too common. Companies post a note in their blog as Facebook did, or send a vague late night email. Users should have the right to be notified in a clear and timely manner about TOS changes. In the end, bad TOS changes will catch up to any social media site, because there will always be a group of users that are paying attention, and there are plenty of other options for consumers.