Deeze Posts… Got ‘Em!
By Alison Palmeri, Staff Writer
“Share with five people in the next 10 minutes or you’ll have seven years of bad luck.”
Had the recent Facebook privacy status ended with this statement, most people would have recognized it as a hoax. Because the status was filled with seemingly complicated legalese, however, many people panicked and impulsively reposted.
Facebook’s privacy policies are fully laid out in their Terms of Service. Within these terms, Facebook specifies that “you own all of the content and information you post on Facebook, and you can control how it is shared,” while Facebook is given a license to all the content that is posted.[i]
What very few people realize is that by signing up for Facebook, they entered into a contract and agreed to all the Terms of Service. Not reading the terms of use is a trend of anyone who enters into an online contract.
According to Omri Ben-Shahar, a professor of law at the University of Chicago, “we know from social science studies that nobody reads [the terms of use], and 95% of people couldn’t understand it if they tried.”[ii]
Agreements formed through websites are generally classified as clickwrap agreements or browsewrap agreements. With a clickwrap agreement, the user is required “to affirmatively click a box on the website acknowledging agreement to the terms of service . . . before the user is allowed to proceed,” whereas in a browsewrap agreement, the user does not have to visit [the hyperlinked terms] to continue using the website or its services.[iii]
When challenged, both types of agreements are examined under contract law to determine their validity. Clickwrap agreements have generally been upheld because they require the user to actually click a button stating “I agree.”[iv] The extra step that the user has to go through to get to the website’s content is enough to draw the user’s attention to the terms of use. In contrast, browsewrap agreements are generally not upheld because the terms of the contract are not in a visible location or the user has to go to a separate page to read them.[v]
Facebook is considered a mixture of the two agreements. On Facebook’s homepage, right above the “Sign Up” button, the user is notified that “By clicking Sign Up, you agree to our Terms and that you have read our Data Policy, including our Cookie Use” with hyperlinks to each of the policies.[vi]
Because the user is given notification about and an opportunity to read what they are agreeing to before signing up, the Facebook Terms of Service have been upheld as a binding contract in the past.[vii]
For example, in Fteja v. Facebook, Inc., the court found Facebook’s terms were enforceable by “[analogizing] Facebook’s terms to a sign next to a bin of apples that says, ‘By picking up this apple, you consent to the terms of sale by this fruit stand. For those terms, turn over the sign.’”[viii]
“Fteja shows that the more an online agreement resembles a traditional clickwrap agreement, the more willing courts are to find the notice necessary to give rise to constructive assent.”[ix]
While posting the privacy status will not have any legal effect, hopefully the current hoax will increase awareness amongst Facebook users and encourage them to look at what they are agreeing to more closely.
[i] “Statement of Rights and Responsibilities.” Facebook. https://www.facebook.com/terms.php.
[ii] Hasselback, Drew. “What’s in the Small Print? Why Clicking ‘I Accept’ is the Same as Signing Your Name on a Paper Contract.” Financial Post, http://business.financialpost.com/legal-post/whats-in-the-small-print-why-clicking-i-accept-is-the-same-as-signing-your-name-on-a-paper-contract.
[iii] Brehm, Alison S. and Cathy D. Lee. “Click Here to Accept the Terms of Service.” 31.1 Communications Lawyer (2015), http://www.americanbar.org/publications/communications_lawyer/2015/january/click_here.html.
[iv] Brehm.
[v] Brehm.
[vi]Facebook. https://www.facebook.com/?_rdr=p.
[vii] Brehm.
[viii] Fteja v. Facebook, Inc., 841 F. Supp. 2d 829, 839 (S.D.N.Y. 2012).
[ix] Brehm.
