Changing the Terms of Service – Do Users Need to Accept?
An interesting thing happened last month. Facebook, facing tremendous backlash from their latest change in Terms of Service, decided to employ a more democratic process. Rather than force changes on the users, Facebook had users vote on their “acceptance” of the proposed terms.
Leaving aside the obvious public relation stunt employed by Facebook, the legal question is: How much user acceptance is required when amending new terms of service? If we look at the typical terms of service agreement, we are likely to see a statement such as this: “XYZ reserves the right to amend these terms of service at any time, with or without notice to the users. It is the user’s obligation to check this page from time to time to see if any changes to the terms were made.”
Does this provision seem strange to anyone? How often have you heard of a contract that can be amended unilaterally by one side with out notice or the option to back out? Not often! That’s because, in our normal daily lives we would never agree to such a contract. So why should such a contract apply online?
While, few courts have looked at this particular question, we do have a great deal of case law on which to build an analysis. Courts have, in online cases, consistently rejected contract provisions which were deemed too onerous when one side did not have the opportunity to choose among alternatives, negotiate or withdraw. From cases concerning arbitration clauses to subscription pricing, courts have rejected provisions that are too one sided.
While this provision is widely accepted in the industry, I would not advise building an online business based on the broad application of unproven and legally weak provisions. Avoid the risk of a court rejecting your Terms. The solution: NOTICE. Go out of your way to provide your users with notifications of any changes made to your policies.
I predict that in the next few years that provision will be come one of the biggest online legal issues. Avoid this future compliance problem by providing notice today.
