Social Media Giants' Terms Unenforceable Under Australian Law
14 June 2016
The International Social Media Association (ISMA) has analysed the enforceability of the Terms of Service of ten of the most prominent social media platforms under Australian law.
ISMA's 2016 Social Media Terms of Service White Paper reveals significant shortcomings throughout the Terms of Service and details where they fail to meet appropriate legal standards in Australia. Unsurprisingly, the Terms of Service are heavily one-sided, in favour of foreign corporations and unfair to Australian users who are being short-changed by the platforms. These findings form the basis of ISMA's reform agenda in balancing the interests and rights of both social media users and the platforms.
As a result of the power held by these platforms, they are burdened with a far greater level of corporate responsibility. Perhaps this is the reason for their overly complicated Terms of Service which they know hardly anyone reads, but which everyone accepts anyway. However, most Australians do not realise that some terms are completely unenforceable. In short, accepting the platforms' terms does not mean throwing your rights away.
The most concerning terms relate to disclaimers of liability, IP enforcement, privacy and data, consumer laws and minors.
Whilst allowable in the United States, it is a contravention of the Australian Consumer Law for platforms to rely on their very broad disclaimers of liability in respect of issues such as the fitness for purpose of the services.
Other problems with the Terms of Service arguably arise due to public policy expectations placed on the platforms by virtue of their influence and control. In order to balance their own legal rights against those of their users, the platforms have had to implement mechanisms to deal with increasing user complaints. The effect is that when claims of infringement or other complaints are filed via the takedown provisions, the platforms are acting as judge, jury and executioner on what are more often than not complex legal issues reserved for the courts.
For example, when it comes to claims other than copyright infringement, such as in respect of trade marks, the platforms appear to be hiding behind the safe harbour provisions of the U.S. Digital Millennium Copyright Act in order to indemnify themselves against any incorrect determinations.
Most users readily accept that they sacrifice some degree of privacy on social media, but the advertising practices implemented by some platforms reveal the inadequacies of the current Australian privacy laws. With minimal notification, some platforms collect parcels of data, called cookies, containing information about users' internet activity both on and off the platforms. If a user elects to opt-out of this practice, that preference is stored as a cookie. This means that when users delete cookies (in order to minimise online surveillance), advertising preferences revert back to the original settings and, without the user realising, the surveillance recommences.
Perhaps of most concern is that none of the Terms of Service carry any clear legal effect for Australian users under the age of 18. Minors are a rapidly growing portion of the social media user base, already numbering in the hundreds of thousands.
Contracts entered into by minors are not always going to be invalid. However, when most of the platforms' Terms of Service are over 45 A4 pages long and require legal training to understand them, it begs the question. Consequently, minors fall into a significant grey area when it comes to enforceability. This could result in issues such as the platforms (or page owners) having to refund payments for in-app purchases made by minors; the invalid assignment of copyright when it comes to user generated content created by minors; or even liability exposures for unauthorised surveillance and data collection of minors online.
"The findings are very comprehensive and reveal the enforceability of the Terms of Service, and the extent that Australian users' legal rights may not be protected" explained Sara Delpopolo, President of ISMA.
"This Paper is a crucial step by ISMA towards achieving what should be expected of the online legal landscape - to protect Australian social media users and assist businesses. Social media is not just about being 'sociable'; it's about how society interacts on digital platforms internationally." Ms Delpopolo concluded.
Intending to avoid a patchwork of laws and the band-aid solutions seen so far, the main objective of ISMA is to work with government departments and platforms to reach a sensible multi-stakeholder resolution.
ISMA's 2016 Social Media Terms of Service White Paper, which incorporates a more detailed Comparison Table, can be accessed via ISMA membership.
For more information, please contact: Head of Policy & Advocacy at firstname.lastname@example.org or +61 2 8006 9964.