{"id":977,"date":"2015-10-05T12:15:21","date_gmt":"2015-10-05T17:15:21","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=977"},"modified":"2017-11-20T20:45:33","modified_gmt":"2017-11-21T01:45:33","slug":"deez-posts-got-em","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2015\/10\/05\/deez-posts-got-em\/","title":{"rendered":"Deez Posts… Got ‘Em!"},"content":{"rendered":"
\"Photo<\/a>
Photo Courtesy of Julian Stratenschulte, http:\/\/www.stratenschulte.de\/<\/figcaption><\/figure>\n

Deeze Posts… Got ‘Em!<\/p>\n

By Alison Palmeri, Staff Writer<\/p>\n

\u201cShare with five people in the next 10 minutes or you\u2019ll have seven years of bad luck.\u201d<\/p>\n

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.<\/p>\n

Facebook\u2019s privacy policies are fully laid out in their Terms of Service. Within these terms, Facebook specifies that \u201cyou own all of the content and information you post on Facebook, and you can control how it is shared,\u201d while Facebook is given a license to all the content that is posted.[i]<\/p>\n

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.<\/p>\n

According to Omri Ben-Shahar, a professor of law at the University of Chicago, \u201cwe know from social science studies that nobody reads [the terms of use], and 95% of people couldn\u2019t understand it if they tried.\u201d[ii]<\/p>\n

Agreements formed through websites are generally classified as clickwrap agreements or browsewrap agreements. With a clickwrap agreement, the user is required \u201cto affirmatively click a box on the website acknowledging agreement to the terms of service . . . before the user is allowed to proceed,\u201d whereas in a browsewrap agreement, the user does not have to visit [the hyperlinked terms] to continue using the website or its services.[iii]<\/p>\n

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 \u201cI agree.\u201d[iv] The extra step that the user has to go through to get to the website\u2019s content is enough to draw the user\u2019s 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]<\/p>\n

Facebook is considered a mixture of the two agreements. On Facebook\u2019s homepage, right above the \u201cSign Up\u201d button, the user is notified that \u201cBy clicking Sign Up, you agree to our Terms and that you have read our Data Policy, including our Cookie Use\u201d with hyperlinks to each of the policies.[vi]<\/p>\n

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]<\/p>\n

For example, in Fteja v. Facebook, Inc.<\/em>, the court found Facebook\u2019s terms were enforceable by \u201c[analogizing] Facebook\u2019s terms to a sign next to a bin of apples that says, \u2018By picking up this apple, you consent to the terms of sale by this fruit stand. For those terms, turn over the sign.\u2019\u201d[viii]<\/p>\n

\u201cFteja<\/em> 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.\u201d[ix]<\/p>\n

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.<\/p>\n

 <\/p>\n

[i] \u201cStatement of Rights and Responsibilities.\u201d Facebook<\/em>. https:\/\/www.facebook.com\/terms.php.<\/p>\n

[ii] Hasselback, Drew. \u201cWhat\u2019s in the Small Print? Why Clicking \u2018I Accept\u2019 is the Same as Signing Your Name on a Paper\u00a0Contract.\u201d Financial Post<\/em>, 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.<\/p>\n

[iii] Brehm, Alison S. and Cathy D. Lee. \u201cClick Here to Accept the Terms of Service.\u201d 31.1 Communications Lawyer<\/em> (2015), http:\/\/www.americanbar.org\/publications\/communications_lawyer\/2015\/january\/click_here.html.<\/p>\n

[iv] Brehm.<\/p>\n

[v] Brehm.<\/p>\n

[vi]Facebook<\/em>. https:\/\/www.facebook.com\/?_rdr=p.<\/p>\n

[vii] Brehm.<\/p>\n

[viii] Fteja v. Facebook, Inc., <\/em>841 F. Supp. 2d 829, 839 (S.D.N.Y. 2012).<\/p>\n

[ix] Brehm.<\/p>\n

\n","protected":false},"excerpt":{"rendered":"

Deeze Posts… Got ‘Em! By Alison Palmeri, Staff Writer \u201cShare with five people in the next 10 minutes or you\u2019ll have seven years of bad luck.\u201d Had the recent Facebook privacy status ended with this statement, most people would have recognized it as a hoax. Because the status was filled [\u2026] <\/p>\n

<\/div>\n

Read More<\/a><\/p>\n","protected":false},"author":1,"featured_media":978,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6,4],"tags":[59,60,56,57,58],"class_list":["post-977","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-juris-blog","category-posts","tag-browsewrap","tag-clickwrap","tag-facebook","tag-privacy","tag-terms-of-service"],"_links":{"self":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts\/977","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/comments?post=977"}],"version-history":[{"count":2,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts\/977\/revisions"}],"predecessor-version":[{"id":1001,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/posts\/977\/revisions\/1001"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/media\/978"}],"wp:attachment":[{"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/media?parent=977"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/categories?post=977"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.law.duq.edu\/juris\/wp-json\/wp\/v2\/tags?post=977"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}