Many websites that contain professionally edited content ask users to sign up as a registered user, either in order to be able to submit comments, or to be able to read further. In such cases one is usually only shown headlines, or introductory paragraphs prior to registration.
It seems to me that such terms are often positioned in a way that it is very easy to check a box to say that you ‘agree to’ them, or have ‘read and understood’ them even when you might not have done (for example, in your enthusiam to get to the activties the site offers only to registered users), thereby potentially leading to a future unmanaged risk.
If you have registered for Facebook, twitter, or mySpace, or The New York Times, The Financial Times, or The Wall Street Journal, or gMail, Google, AOL, or t-online, etc. then you will already have accepted the terms set by the respective owner.
The registration process is often used to capture certain personal information about you, helping the website owner understand who the users are, including sometimes:
- future marketing of the website,
- tailoring the content to the users,
- attract/obtain internet advertising, etc., or
- communicate certain legal information to you (ie, the terms).
A key aim of this process is to protect the website owner by setting rules relating to your activities on the site, your right (or lack of right) to make a claim, and your indemnification of the site for any claims against it that relate somehow to you (see the example below in the Apple iTunes Store Terms of Service, #19). ‘Indemnification’, while appearing regularly, can be a scary concept, and one that is worth reading carefully.
On a few occasions I came across websites that made the user open and scroll through the terms to the last line before it would let you ‘accept’ the terms and continue with my registration – of course I always do, but somehow I hadn’t scrolled to the very end of the empty spaces at the end of the terms …).
Sometimes not even a check box is offered, but instead an implicit agreement by proceeding:
Legal knowledge required?
The terms are usually written by lawyers, but read by non-lawyers, meaning that internet users’ ability to understand the terms is sometimes limited. Typically however you are asked to confirm that you have read, and understood the terms. Are internet users even the right judge of whether they have understood the terms?
Surely it takes someone who is trained in law to answer that question, but they are not usually available when registering for a new website (nor is it likely that one would consider to be reasonable the cost of taking legal advice when registering each time for a new website!).
I’m not a lawyer, but I read (and help draft) contracts at work (but in my field, with templates, and lawyers on hand if I require them). Nevertheless, I read the terms and think that I usually prema facie understand what is being shown to me, and am able to make my own interpretations of the level of risk, and whether they are acceptable to me (but as highlighted, I do this without a legal background).
The terms on different websites are written by different people (and presumably always, but perhaps not in fact always the case) by lawyers. Nevertheless, despite there appearing to be a broadly standard approach to terms (and perhaps lots of ‘copy/past efforts’ to save time and hassle) different terms vary in their wording, depth, extent, length, etc. – and perhaps also quality.
This might mean that the readability of the terms varies – the user appears to be the one who suffers possible risks as a result of this (having to read, understand and interpret the implications of the terms before registering, or deciding not to register), possibly caveated by variations in the legal validity of some terms (but one probably doesn’t want to rely on that).
Cross border matters
Sometimes the terms and conditions appear in the ‘wrong’ language, and cannot be shown in other languages (expats suffer in particular here – terms are often only shown in language of the destination (where the user sits), even if other languages are available for other destinations, but possibly legal terms are different in those jurisdictions.
Sometimes the terms highlight that the applicable law (where any challenge would be heard, or the terms would be upheld by a court) in the country of the origin of the website, meaning US for many cases. This creates a new challenge for many internet users in that they may not be familiar with US law or how to go through a US legal process, hire lawyers who are experienced in US law, etc.
One interesting example I recently came across was:
Gizmoz [a site that uses real photos to create avatars and augmented reality pictures] makes no representation that Content on the Website is appropriate or available for use in locations outside the United States, and accessing it from territories where the Content is illegal is prohibited. Those who choose to access the Website and use the Services from other locations do so on their own initiative and are responsible for compliance with local laws
This is quite tricky for your average internet user – does anyone really know all of the local laws relating to using such websites? Since it seems legal in US (subject to following the other terms) can one assume that there is unlikely to be a problem? When we talk about ‘likelihood’, how small is the probability of risk? It seems that this is rather a ‘CYA‘ caveat from Gizmoz: maybe they haven’t yet spent any money on legal advice for foreign countries, so it’s your problem now if you want to use their website – fair enough perhaps?
Alternative actions that websites might take, might be to:
- lock the website from use by foreign users (of course I can’t imagine sites doing this, because they are usually happy if their traffic is higher if foreign users take the risk and nevertheless use their website despite not fully understanding implications of their local laws and use of the website; foreign internet users might also be disappointed, or feel discriminated against to be excluded from having the opportunity to use the website), or
- make the disclosure clearer on the website’s homepage (technology would even allow such a caveat to appear only to international/foreign visitors, and not domestic visitors).
Not just an ‘online’ issue
In fact, it’s not really just an online issue – just, the nature of online registration and ‘tick boxes’ makes it more obvious there, as well as potentially increasing the number of agreements that we sign up to in total, as well as with parties that we may not know as well, or in foreign countries.
Similar terms and conditions agreements are signed on each credit card receipt, hotel room booking, rental car agreement, etc. Invariably the sales assistant doesn’t even expect you to read the small print, simply pointing you to a couple of asterisked boxes, “Please sign here, and … here” (and in some cases turned already to the page where the signature boxes are, with other pages or parts folded over …). They know that a lot of people, if not even the majority, don’t read the small print.
I even remember a time in a delivery room, when I was asked to sign a 32 page legal document in the middle of the night, relating to the delivery of birth assistance drugs (epidural, etc.), for my wife – I started to read, but in the end our first baby came and the drugs weren’t eventually needed (not because of my insistence on reading the small print, but rather nature decided to start to take its course …!).
An example – Apple iTunes (http://www.apple.com/legal/terms/)
Apple has separate terms for each of the following:
- iTunes Store Terms of Sale
- iTunes Store Terms of Service
- Gift Certificates, iTunes Cards, Song Codes and Monthly Gifts (Terms and Conditions)
- App Store – Terms and Conditions
Also, Apple shows Terms of Service for the following, which presumable one would need to be aware of (note, these are only the page headings – behind each one is multiple pages of terms, covering different countries):
- Web Site Terms and Conditions of Use
- Apple Print Services Sales Policies & Ordering Information
- MobileMe Terms of Service
- iWork.com Public Beta Terms of Service
- One to One Terms and Conditions
- ProCare Terms and Conditions
- iChat Account Terms of Service
- iTunes Store Terms of Service
- iTunes Store Gift Certificates and Allowances Terms and Conditions
- iTunes Store Terms of Sale
- Discussions Terms and Conditions
- Repair Terms and Conditions
- iPhone Service (PDF)
- Online Repairs in North America
- Online Repairs in France
- Online Repairs in Germany
- Online Repairs in United Kingdom
- U.S. Retail Repairs
- Advance Replacement Service for iPhone
- In Warranty Terms and Conditions
- Out of Warranty Terms and Conditions
- Training Service Terms and Conditions
- Unsolicited Idea Submission Policy
- Trademark, Copyright and Intellectual Property
- Trademark List
- Apple Web Badges
- Piracy Prevention
- Guidelines for Trademarks and Copyrights
- FileMaker Legal Information
- NeXT Trademark List
- Legal Contacts
- Export Compliance
- Supplier Provisions
For example, the iTunes Store Terms and Conditions (UK) include 38 pages of legal text (Times New Roman, Font Size 12, single line spacing):
- TERMS OF SERVICE
- TERMS OF SALE
- GIFT CERTIFICATE, iTUNES CARDS, CONTENT CODES AND ALLOWANCES
- APP STORE TERMS AND CONDITIONS
- LICENSED APPLICATION END USER LICENSE AGREEMENT
TERMS OF SERVICETERMS OF SALEGIFT CERTIFICATE, iTUNES CARDS, CONTENT CODES AND ALLOWANCESAPP STORE TERMS AND CONDITIONSLICENSED APPLICATION END USER LICENSE AGREEMENT
iTunes StoreTERMS OF SERVICEThis is a legal agreement between you and iTunes S.à.r.l. (“iTunes”) stating the terms that govern your use of the iTunes Store service. This agreement – together with all updates, additional terms and all iTunes/Apple rules and policies referred to in this agreement – collectively constitute the “Agreement” between you and iTunes. To agree to these terms, click “Agree”. If you do not agree to these terms, do not click “Agree”, and do not use the service. You must accept and abide by these terms as presented to you; changes, additions, or deletions are not acceptable, and iTunes may refuse access to the iTunes Store for non-compliance with any part of this Agreement.This Agreement applies without prejudice to software licenses that you may have entered into, such as for the use of the iTunes application.1. Definition of the iTunes Store Service2. Use of the Service.3. Objectionable Material.4. System Requirements.5. Applicable Terms.6. Privacy.7. Your Information.8. User Account and Security.9. Purchase or Rental of iTunes Content10. Territory.11. Agreement to Pay.12. Right of Withdrawal and Delivery of Products.13. Intellectual Property.14. Termination.15. General Compliance with Laws.16. Enforcement of These Terms.17. No Responsibility for Third-Party Materials or Web sites.18. Disclaimer of Warranties; Liability Limitations.19. By using the Service, you agree you are liable to iTunes, its directors, officers, employees, affiliates, agents, contractors, and licensors for any claims arising out of your breach of this Agreement, or any action taken by iTunes as part of its investigation of a suspected violation of this Agreement or as a result of its findings or decision that a violation of this Agreement has occurred. [“Indemnity clause”]20. Changes.21. Notices.22. Governing Law.23. Miscellaneous.
iTunes StoreTERMS OF SALEThis is a legal agreement between you and iTunes S.à.r.l. (“iTunes”) stating the terms that apply to any purchase or rental (as applicable) on the iTunes Store. These Terms of Sale apply in addition to the Terms of Service of the iTunes Store Service (“Terms of Service”). By agreeing to the Terms of Service, you have agreed to these Terms of Sale.U.K. SALES ONLYSALES TO END USERS ONLYCANCELLATION POLICYTECHNICAL STEPS – 1-Click®PAYMENT METHODSBILLINGGIFT CERTIFICATE TRANSACTIONSPRE-ORDERSMONTHLY GIFTSiTUNES CARDSGIFTSDORMANT GIFT CERTIFICATES, MONTHLY GIFTS AND iTUNES CARDSCOMPLETE MY ALBUM (“CMA”)ITUNES PLUSRINGTONESSEASON PASSiTUNES PASSiTUNES LP AND iTUNES EXTRAiPOD GAMESSOFTWAREUPGRADESFILM RENTALSHDMIHIGH DEFINITION PRODUCTSPRICESCONTENT AVAILABILITYFOR ASSISTANCE WITH ORDERS – iTUNES STORE CUSTOMER SERVICECONTENT USAGE RULESOTHER TERMS AND CONDITIONS
People might have a number of questions at this stage:
- Should we be worried by this apparent (almost under-the-radar) increase in the extent to which we are offering indemnification to other parties?
- What should/can we do? Stop registering for websites? Ignore the risk?
- Is there any further resource available for help?
- Are there any case history examples of when websites have attempted to enforce or sue users in accordance with terms?
- Can we somehow enforce websites to change their terms? (in my experience, this would appear unlikely)
I don’t have answers to these questions, but I think that internet users should be debating these topics more.
Currently the terms and conditions are generally accepted by everyone, so there is little chance that you an individual can change them. Nevertheless, there are enough people out there who will read them carefully, and some of these will have a legal background, and some of them will perhaps challenge any errors or unfair terms in the contract (I hope!).
In any case, anyone registering for a new website should try and read what is being shown to them. If you’re not happy, cease to use the website, or make a complaint.
As far as websites are concerned, the terms and conditions and privacy policies tend to orient themselves around a few key principles (in addition to stating how exactly they would exercise their rights), which one might always consider to try to minimise risk of breaching the terms:
- websites want to protect themselves against what you do with information that you obtain from them – if you copy/pass-on any information of any form make sure you know your rights, but it should be fairly obvious that one needs to avoid using material that is, or could be copyright protected, or similar (check first);
- websites don’t want to suffer any liability for what you might leave on their website (eg, comments, messages, uploaded pictures, etc.) – again, know your rights, but avoid obvious issues (eg, language that is, or could be conceived as being vulgar, obscene, libelous, pornographic, or defamatory, hateful or racially or ethnically objectionable, or violates the privacy or publicity rights of any third party, or spam)
- websites want to limit damage to the site from viruses, worms, malware, Trojan horses or other harmful or destructive content (since a key part of the power of the internet is in the use of hyperlinks, I would imagine this might be a tricky one for people to commit to other than to not post any more links – nevertheless, a quick look at Twitter shows that a huge amount of links are being posted all the time – for an example, see Twitturls.com)
Still not enough? A couple of ideas:
- standardized terms, via a voluntary scheme that websites sign-up to to show their willingness to have an open dialogue with their users, or if that doesn’t work, to be enforced by some sort of global internet regulator (to be created, or piggy-back an existing one?),
- terms to be logged with a central website on a voluntary basis (anyone want to set this up? – you could get some good advertising revenue, and build credibility for delivering a much needed service). This would also help ensure that changes to terms are also recorded in a central location where we can register for email updates of terms that change that relate to websites that we use.
- a non-profit organization to help both sides (users and website owners) in setting up terms, help answer questions (general questions via FAQ/forums, and more specific questions could be on a paid-for basis, to recover costs), and resolving issues that arise.
Some progress is being made. There are examples of some organisations taking initiative here – two examples arise from the registration process for blippr.com, the social media ‘media review sharing’ website.
As for the legalese …… it’s only here because it needs to be. If you have a question or issue, we’d much rather talk like normal people. Just contact us and we’ll get back to you as soon as possible.
Secondly, their Terms of Service (ToS) are built off a common platform developed by wordpress.com, who made their ToS freely available for others to use:
This legal stuff was inspired by the kind folks over at Automattic (a.k.a. WordPress.com who made their Terms of Service available under a Creative Commons Sharealike license, which means you’re more than welcome to steal it and repurpose it for your own use. So we did. Feel free to do the same if you’re interested.
Such initiatives could be helpful to bloggers are other organizations that own websites, but aren’t ready to develop their own tailor made terms of service (as well as instilling some consistency across websites). The danger is that without legal support, can one truly understand the Terms of Service that one is employing on one’s own website?