Do you read Terms of Service?
Washington, July 2, 2020
What are Terms of Service?
Terms of Service agreements are contracts between a service provider and user that govern the use of a product. They establish rules, requirements, and prohibitions for use of the platform or website. They state copyright and trademark law, outline when a user can be terminated, proscribe billing and subscription rates and timelines, and explain content moderation policies, among other topics. These are just the issues that should be of interest to a consumer. Additional items may include how information is collected and shared, how many users are authorized, device specifications, advertising policies, and arbitration requirements.
Why do Terms of Service exist?
A Terms of Service agreement is not required by law, but nearly every online entity requires agreement with their policies for use of the service. This is to protect the company from liability, preserve proprietary information, establish immunity under Section 230 of Communications Decency Act, have the ability to collect user data, and establish legal procedures in the event of a dispute. This list is not exhaustive.
Are Terms of Service enforceable?
Yes. But there are two sides to this enforcement just as there are two sides to the agreement. Terms of Service are generally enforceable under the Computer Fraud and Abuse Act, which holds individuals who violate a contract limiting the uses of a computer, such as a Terms of Service agreement, criminally liable if they act without authorization or in excess of authorization. That means that if a consumer uses a service or product in a manner that is not part of the Terms of Service agreement, the user may be violating federal law.
Alternatively, an online service provider, such as a social media platform, website, or application owner, may be subject to enforcement under the Federal Trade Commission’s prohibition on “unfair or deceptive acts or practices.” Companies that make misrepresentations to consumers by not adhering to a Terms of Service agreement or posted policy may be held accountable. It is often consumers who identify this behavior and alert that something is amiss.
Why you don’t read Terms of Service…
According to several studies, and personal experience, most users to do not read Terms of Service.
Terms of Service are lengthy, boring, often require navigating to a new page, and are full of complicated legalese that the average consumer does not have the time or desire to decipher. Because we want access, we click the box agreeing to the Terms of Service without ever having read them, trusting that nothing too nefarious awaits us should we run afoul of whatever it is to which we’ve just agreed.
This blind trust is what leads many to misinterpret their rights on social media platforms while missing opportunities to hold the same companies accountable.
…and why you should.
Without knowing and understanding Terms of Service and privacy policies, you have limited control over how your data is collected and used, when you can be held liable for actions you might take, or how you can hold the service accountable for violations.
Some companies have taken steps to make Terms of Service more accessible to consumers by using plainer language and shortening the length of agreements. It is up to users to take a few minutes to access and read them.
Without reading the Terms of Service a consumer limits the liability of the company providing the service while simultaneously increasing their liability as a user. We must be proactive consumers by reading Terms of Service before we click Agree.
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