You’re Fired: The Legalities Around Suspending Users From A Social Media Platform, App, Or Website – Media, Telecoms, IT, Entertainment

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You’re Fired: The Legalities Around Suspending Users From A Social Media Platform, App, Or Website


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On the evening of Friday, January 8, 2021, Twitter took the
unprecedented move of permanently suspending the account of the
sitting President of the United States of America. Unless
you’ve been living a quaint life devoid of the internet for the
past four years, any reader should recognize that Twitter was the
President’s preferred communication tool. Around that same
time, Facebook, Instagram, Twitch, Reddit, Snapchat, YouTube,
Discord, Shopify, Stripe and even Pinterest also shut down the
President’s various accounts. The impact was swift and
pervasive and most notably will make it very challenging to
purchase a particular branded red hat.

This post will not venture anywhere near a discussion of the
reasons for the suspensions. However, in the wake of these
suspensions, a question around the power inherent in Terms of
Use/Terms of Service has risen once again. These various sites,
which control the thoughts, feelings, opinions, and desires of the
majority of the world’s population, also seem to hold
inordinate power when it comes to the removal of any given user. Is
that power unlimited? Are Terms of Use, draconian as they may be
written, nonetheless legally binding? This blog explores this
question in more detail.

So Much Winning: Platforms have largely unlimited power

For those looking for the nugget of wisdom here, the reality is
that Terms of Use are largely unconstrained in their application.
If the Terms of Use provide a Platform with the ability to
terminate any user’s account, at any time, for any reason, the
user is effectively out of luck. For the free speech/freedom of
expression crowd, courts in both Canada and the United States have
held that restrictions on these rights generally apply to
governments, not private enterprises. Furthermore, notwithstanding
that a social media influencer may be hauling in millions in
revenue, freedom of speech does not also guarantee the freedom to
commercialize that speech.

At best, a Platform exercising unrestricted powers over users
may risk alienating those same users. While beyond the scope of
this blog post, there are multiple examples of key influencers
leaving one Platform for another where the original Platform was
deemed too heavy-handed in the application of its Terms of Use.
That can have very large impacts on the user base of that Platform
(and ultimately the advertising revenue flowing through that
Platform).

The Least Reviewed Document You’ve Ever Seen: Legalities of
Terms of Use

It should come as no surprise that Terms of Use remain largely
unread and unreviewed. It is their hidden/relegated status at the
bottom of a webpage (or embedded within some App) that often gives
rise to arguments about their enforceability. Unfortunately for the
ignorant and dissatisfied, their relegated status does not provide
an opening for claims of unenforceability.

In Canada, there is case law to support both (i) an extremely
wide discretion to creators of Terms of Use, and (ii) the ease of
consent to Terms of Use, in most cases simply requiring access of a
website or app to prove user consent. By way of example, readers
should review a B.C. case from 2011 concerning Century 212 and
Rogers Communication
. From this case and others, we
can glean a number of legal principles applicable to Terms of
Use:

  • The lack of a “skull and crossbones” disclaimer upon
    entering a website does not endanger the legal enforceability of
    Terms of Use

  • Clickwrap (i.e. clicking to confirm consent) and browse/scroll
    wrap (i.e. browsing or scrolling an app or website to confirm
    consent) agreements are legally enforceable

  • The interaction of business owners and customers through a
    Platform is no different than a bricks and mortar shop of
    yesteryear; the shopkeeper is still permitted to control access to
    his or her shop as they see fit

  • If the Terms of Use are overly burdensome to users, they may
    require more explicit mention or explicit consent (for example,
    there is a difference between a “buried” term saying the
    Platform owns all data on the Platform versus another requiring the
    user to offer up extremely sensitive personal information to the
    Platform without the user’s knowledge or consent)

In the United States, by contrast, the author understands that
U.S. courts are generally more reluctant to enforce browse/scroll
wrap Terms of Use if there are issues with notice as there is no
active acceptance, as compared to clickwrap agreements. See this 2009 case
concerning Overstock.com
for an example. The authors
wish to be clear that neither are U.S. practitioners, so U.S. legal
advice should be sought for any matter concerning enforceability of
Terms of Use in the United States of America.

Notwithstanding this seeming invincibility, there seems to be
some judicial appetite for forcing Platforms to make an honest
attempt at drawing Terms of Use to the user’s attention. While
browsewrap is still by far the norm, Platforms might do well to
gravitate towards explicit clickwrap agreements. Making it
expressly known that “this is our house and we make the
rules” might save some pain down the line.

Make Terms Great (Again?): Best Practices for Businesses

As former Obama Chief of Staff Rahm Emanuel once eruditely said:
“never let a good crisis go to waste”. It appears
Churchill may have been the original source of this quote, but the
authors felt Mr. Emmanuel’s usage was more topical given the
context of this post. For Platforms and businesses generally,
watching this chaos unfold, there are some lessons to be learned
when it comes to Terms of Use:

  • Keep it Simple – Overly verbose Terms of Use, written
    in archaic legalese, will not be understood by users. There is a
    plain language movement generally in legal circles, and it has
    become more pervasive in Terms of Use development. Better practices
    around visual representation of terms, plain language summaries,
    and in-line summaries, are thankfully becoming more regular. They
    should be used where possible.

  • Keep it Broad – In order to ensure near-complete
    control over the Platform (or website or app), the Terms should
    provide near-absolute purview to the owner to remove users as the
    owner sees fit. This should critically include being very clear
    that: (i) the owner owns everything (i.e. all intellectual
    property) on the Platform, (ii) the user has an extremely limited,
    personal license to use the Platform, (iii) the owner is not
    responsible for, nor warranties, any content on the Platform, (iv)
    the owner’s liability to users, if any, is limited to the
    amounts paid by the user to the owner to access the Platform, (v)
    disputes, if any, are to be interpreted in accordance with, and
    litigated in, the preferred jurisdiction of the owner, and (vi) the
    owner can change the Terms at any time, for any reason, and will do
    its’ best to bring those changes to the attention of
    users.

  • Keep it Commercially Reasonable – While the previous
    bullet suggests a “god mode” approach to Terms of Use,
    Platform owners have to balance the commercial interest. Overly
    restrictive terms may disenfranchise popular users and thereby
    decrease the user pool. A Platform, or any online business, has a
    value that generally correlates with its’ user base. If YouTube
    is seen as overly restrictive compared to Twitch, YouTube will see
    a loss of “star users” to Twitch. This will, more
    importantly, give rise to a loss of advertising revenue and other
    revenue generation opportunities. For that reason, Platforms and
    other businesses should at least ensure their Terms are in line
    with similar Terms adopted in their industry.

  • Keep it Visible – Regardless of whether the Platform
    (or website or app) adopts a clickwrap or browse/scroll wrap
    approach, the Terms (and any “I agree” or check the box
    mechanisms) should be relatively visible to users. While standard
    convention is to hide these away on the bottom of web pages, it is
    worth Platforms considering whether certain events demand drawing
    user’s specific attention to terms. For example, when a user
    creates an account or purchases a good or service through the app,
    that is likely a good opportunity to at least provide a highly
    visible hyperlink to the Terms of Use (and perhaps also require an
    “I agree I read the Terms and consent to their
    application” box).

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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