By reading this, you consent to send me $100 and make me a sandwich
January 5, 2015 12:44 PM
My first reaction when seeing a headline to the effect that people's Facebook posts stating that Facebook had no right to use XYZ data did not retroactively invalidate users' consent to the terms of service was, "no shit."
But then I thought, well why the hell not?
Why can't a user of a social media network, or users of any website for that matter, simply make their own declaration as to what the user/service interaction means, and for that declaration to have legal merit? After all, the company/website/service/whatever is apparently able to assert the legal intentions of users regardless of the users' actual intentions, so why does the other party in the relationship not have that ability?
I'm interested in actual jurisprudence or law review articles, not so much "it's common sense" or "everybody knows."
Why can't a user of a social media network, or users of any website for that matter, simply make their own declaration as to what the user/service interaction means, and for that declaration to have legal merit? After all, the company/website/service/whatever is apparently able to assert the legal intentions of users regardless of the users' actual intentions, so why does the other party in the relationship not have that ability?
I'm interested in actual jurisprudence or law review articles, not so much "it's common sense" or "everybody knows."
In other words, you need to get Mark Zuckerberg to click the little "I accept" button that you somehow attach to your restrictions.
posted by alms at 1:00 PM on January 5, 2015
posted by alms at 1:00 PM on January 5, 2015
saeculorum nails it. You can't unilaterally decide to alter the terms of a bilateral contract. If you don't like Facebook's terms, you have the option to decline to continue using the service and to walk away from the agreement (which is actually a lot better an option than a lot of contracts give you, come to think of it).
posted by holborne at 1:00 PM on January 5, 2015
posted by holborne at 1:00 PM on January 5, 2015
@saeculorum: what about a TOS which says something along the lines of "inaction consitutes acceptance of the new TOS"? Is that valid, or does the first TOS which you agree to have to include "inaction means acceptance"?
posted by devnull at 1:01 PM on January 5, 2015
posted by devnull at 1:01 PM on January 5, 2015
Cool. Have these issues been litigated? Anything I can read?
posted by univac at 1:02 PM on January 5, 2015
posted by univac at 1:02 PM on January 5, 2015
A term that you might find interesting to learn about is contract of adhesion. There used to be a thinking that non-negotiated contracts were potentially unenforceable because of the power differential between the parties. However, courts in the US at least seem to have settled on the answer that click-thru style contracts are generally enforceable as written because the user always has the right to decline to use the software/service.
posted by sparklemotion at 1:03 PM on January 5, 2015
posted by sparklemotion at 1:03 PM on January 5, 2015
Nguyen v. Barnes & Noble Inc. is a recent case that supports what saeculorum wrote. The jist: BN could not force a dissatisfied purchaser into arbitration (as dictated in their ToU) because BN.com did not require the purchaser to accept its ToU (e.g. by clicking an "I agree" button). Simply posting the ToU on their site wasn't enough.
posted by JackBurden at 1:03 PM on January 5, 2015
posted by JackBurden at 1:03 PM on January 5, 2015
So I could send a registered letter to FB's legal department stating that by accepting the letter they agree to my terms of service?
posted by univac at 1:04 PM on January 5, 2015
posted by univac at 1:04 PM on January 5, 2015
saeculorum: I didn't write that Fabebook asserts its intentions, but asserts its users' intentions, defining the meaning of box-clicking and site-using regardless of users' actual intentions.
posted by univac at 1:06 PM on January 5, 2015
posted by univac at 1:06 PM on January 5, 2015
No, because presumably they wouldn't know what was in the letter before they opened ("accepted") it.
posted by rhizome at 1:07 PM on January 5, 2015
posted by rhizome at 1:07 PM on January 5, 2015
I understand these arguments, but can anyone point me to decisions or scholarship on consent fiction?
posted by univac at 1:09 PM on January 5, 2015
posted by univac at 1:09 PM on January 5, 2015
Here's a basic overview of the BN case and "browsewrap" agreements.
I'd say Facebook's TOS is a clickwrap agreement, as you must agree to it prior to obtaining membership/access. This article is a good overview on the caselaw surrounding clickwrap agreements.
I'm not sure what you're asking with respect to consent fiction. In the case of Facebook, and many membership-based websites, you explicitly consent to the TOS (and how amendments to the TOS are handled) prior to accessing the service.
posted by melissasaurus at 1:50 PM on January 5, 2015
I'd say Facebook's TOS is a clickwrap agreement, as you must agree to it prior to obtaining membership/access. This article is a good overview on the caselaw surrounding clickwrap agreements.
I'm not sure what you're asking with respect to consent fiction. In the case of Facebook, and many membership-based websites, you explicitly consent to the TOS (and how amendments to the TOS are handled) prior to accessing the service.
posted by melissasaurus at 1:50 PM on January 5, 2015
univac, to clarify: Are you trying to make the argument that Facebook's TOS should be unenforceable against the user because when the user clicks the "I Agree" button they may not actually intend to "agree"?
If so, I think that that line of reasoning might be curtailed by Lucy v. Zehmer which stands for, inter alia, the proposition that a contract can be formed by the outward appearance of offer and acceptance. So, you can't sign a contract in a way that would lead reasonable others to believe that you meant to sign it, but then say you were "just joking". Similarly, you can't click "I Agree" and then claim that you didn't really mean to agree.
In contrast, this: So I could send a registered letter to FB's legal department stating that by accepting the letter they agree to my terms of service? wouldn't work because opening a letter is not a generally expected way to agree to something. Maybe if the outside of the letter stated that by opening the letter the recipient agreed to all of the terms (which would have to be available before opening the letter).
posted by sparklemotion at 2:00 PM on January 5, 2015
If so, I think that that line of reasoning might be curtailed by Lucy v. Zehmer which stands for, inter alia, the proposition that a contract can be formed by the outward appearance of offer and acceptance. So, you can't sign a contract in a way that would lead reasonable others to believe that you meant to sign it, but then say you were "just joking". Similarly, you can't click "I Agree" and then claim that you didn't really mean to agree.
In contrast, this: So I could send a registered letter to FB's legal department stating that by accepting the letter they agree to my terms of service? wouldn't work because opening a letter is not a generally expected way to agree to something. Maybe if the outside of the letter stated that by opening the letter the recipient agreed to all of the terms (which would have to be available before opening the letter).
posted by sparklemotion at 2:00 PM on January 5, 2015
I didn't write that Fabebook asserts its intentions, but asserts its users' intentions, defining the meaning of box-clicking and site-using regardless of users' actual intentions.
Actual intent isn't as important as you think. What matters is the manifestation of intent, which is judged by an external standard. See Section 2 of the Restatement (2nd) of Contracts, particularly comment b. So, if I act in ways that would be reasonably understood as manifesting an intent to agree, for example by saying "we have deal," shaking hands, and then signing a contract, it won't help me much if I later claim in court that I secretly and personally did not intend to agree and actually meant those gestures to convey my lack of agreement. ("Your honor, I'm an odd duck and I've decided that whenever I sign a written contract what I'm conveying is my complete and utter disagreement with the terms written above the signature line.") This is, as the Restatement comment notes, what is sometimes called an "objective" standard in the law. However, I don't personally find that it helps to focus on the words subjective or objective.
One interesting legal issue over the last 20 years has been what types of behavior sufficiently manifest an intent on the consumer's part to agree to terms with a software or web company. Was opening a box sufficient if there was something written on the outside saying that doing so constituted agreement to the terms of a software license agreement contained within? The early cases were mixed. However, ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), in which the user both opened a box containing such a warning, didn't return the product, and then typed or clicked something after starting up the software, was something of a turning point. Since then, the courts have been pretty willing to enforce so-called "clickwrap" agreements. Having the would-be user deliberately click or check a box stating that he or she agrees to the terms set forth above makes it hard for that person to later persuade a judge that they hadn't manifested an intent to agree. ("Yes, I clicked the box next the words 'I agree,' but I didn't really intend to agree" doesn't carry much weight with most judges.)
Browserwrap contracts, like the B&N case, and revisions to an existing set of terms of service are a closer case and can depend on the circumstances (though in the latter situation the terms to which a user earlier explicitly agrees to often include something giving the company a right to amend the terms.)
posted by Area Man at 2:03 PM on January 5, 2015
Actual intent isn't as important as you think. What matters is the manifestation of intent, which is judged by an external standard. See Section 2 of the Restatement (2nd) of Contracts, particularly comment b. So, if I act in ways that would be reasonably understood as manifesting an intent to agree, for example by saying "we have deal," shaking hands, and then signing a contract, it won't help me much if I later claim in court that I secretly and personally did not intend to agree and actually meant those gestures to convey my lack of agreement. ("Your honor, I'm an odd duck and I've decided that whenever I sign a written contract what I'm conveying is my complete and utter disagreement with the terms written above the signature line.") This is, as the Restatement comment notes, what is sometimes called an "objective" standard in the law. However, I don't personally find that it helps to focus on the words subjective or objective.
One interesting legal issue over the last 20 years has been what types of behavior sufficiently manifest an intent on the consumer's part to agree to terms with a software or web company. Was opening a box sufficient if there was something written on the outside saying that doing so constituted agreement to the terms of a software license agreement contained within? The early cases were mixed. However, ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996), in which the user both opened a box containing such a warning, didn't return the product, and then typed or clicked something after starting up the software, was something of a turning point. Since then, the courts have been pretty willing to enforce so-called "clickwrap" agreements. Having the would-be user deliberately click or check a box stating that he or she agrees to the terms set forth above makes it hard for that person to later persuade a judge that they hadn't manifested an intent to agree. ("Yes, I clicked the box next the words 'I agree,' but I didn't really intend to agree" doesn't carry much weight with most judges.)
Browserwrap contracts, like the B&N case, and revisions to an existing set of terms of service are a closer case and can depend on the circumstances (though in the latter situation the terms to which a user earlier explicitly agrees to often include something giving the company a right to amend the terms.)
posted by Area Man at 2:03 PM on January 5, 2015
To your updates: 1) No. The courts (c.f. the case I cited above) have determined that actual consent is necessary. The example of mailing a letter is consent fiction.
2) The user's intentions don't matter. Facebook asserts the rules you need to follow to use their service (e.g. agreeing to host a teen sleepover so long as no one drinks). If you don't like the rules, you can leave. You can't say "well after we watch Grease let's have some Zimas because that was my intent all along!" You do not have a god-given right to use these services, just like you can't go to a bakery and demand a tire rotation.
3) Consent fiction doesn't apply to the Facebook example because of its clickwrap agreement.
posted by JackBurden at 2:03 PM on January 5, 2015
2) The user's intentions don't matter. Facebook asserts the rules you need to follow to use their service (e.g. agreeing to host a teen sleepover so long as no one drinks). If you don't like the rules, you can leave. You can't say "well after we watch Grease let's have some Zimas because that was my intent all along!" You do not have a god-given right to use these services, just like you can't go to a bakery and demand a tire rotation.
3) Consent fiction doesn't apply to the Facebook example because of its clickwrap agreement.
posted by JackBurden at 2:03 PM on January 5, 2015
So I could send a registered letter to FB's legal department stating that by accepting the letter they agree to my terms of service?
If you actually sent a registered letter to FB's legal department and that letter claimed to change their TOS as it relates to you, it would be invalid, as others have said above. But I'd bet you $5 that you would pretty quickly find your account deactivated or, at least, forced to go back through the "I Agree" process.
posted by toomuchpete at 2:39 PM on January 5, 2015
If you actually sent a registered letter to FB's legal department and that letter claimed to change their TOS as it relates to you, it would be invalid, as others have said above. But I'd bet you $5 that you would pretty quickly find your account deactivated or, at least, forced to go back through the "I Agree" process.
posted by toomuchpete at 2:39 PM on January 5, 2015
You might get a kick out of the Dmitry Argarkov story.
posted by Trivia Newton John at 4:06 PM on January 5, 2015
posted by Trivia Newton John at 4:06 PM on January 5, 2015
The legal term of art you want to use in your searches is "clickwrap."
posted by J. Wilson at 6:05 PM on January 5, 2015
posted by J. Wilson at 6:05 PM on January 5, 2015
Trivia Newton John, that's a great story & exactly the kind of creative reframing I'm interested in. (I couldn't find any follow up articles describing how the courts ultimately ruled though.)
posted by univac at 12:07 AM on January 6, 2015
posted by univac at 12:07 AM on January 6, 2015
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In the case of Facebook, you can offer to Facebook to use their service in any way you want, but Facebook needs to accept that offer. A statement made to your Facebook page is arguably an offer, but it is not an offer that Facebook accepts.
After all, the company/website/service/whatever is apparently able to assert the legal intentions of users regardless of the users' actual intentions
You can choose to decline to use Facebook. Facebook does not "assert" its intentions; Facebook offers a user agreement for the user to either agree to or decline.
posted by saeculorum at 12:49 PM on January 5, 2015