Tuesday, February 26, 2013

Revolving door of contract terms?

At the International Contracts Conference, there was plenty of references and discussion of companies changing terms and conditions whenever they see fit to do so (see AT&T litigation; Apple).  AT&T readily notes that it changes terms "from time to time.  as does Apple.   As another example, Facebooks' multiple terms and conditions changes have resulted (see, e.g.,  new instagram changes), like AT&T, more than a bit of grumbling from users. 

So, is there anything to be done about this?  Seems not.  A contract just isn't what it used to be in terms of mutual assent it appears.  Now we all agree to an agreement that allows unilateral modification.  I am hardly convinced that consumers actually agree to this, but the overreaching of sellers in is well documented.  Pete Seeger once said, “Education is when you read the fine print. Experience is what you get if you do not.” It seems now, it might not matter whether we read the fine print terms or not.  Hardly encouragement to read these darn provisions.

Other than suing the seller, consumer options seem limited.  When Facebook, Inc. made its debut as a publicly traded company, and changed its terms and conditions, some Facebook users attempted to creatively try to block resuse of profile content.  Basically, the users began posting status updates citing provisions from the Uniform Commercial Code in order to protect their content. The notice, in part, read:

By the present communiqué, I hereby notify Facebook that it is strictly forbidden to disclose, copy, distribute, disseminate, or take any other action against me on the basis of this profile and/or its contents. The aforementioned prohibited actions also apply to employees, students, agents, and/or any staff under Facebook’s direction or control. The content of this profile is private and confidential information. The violation of my privacy is punishable by law (UCC 1-308, 1-103, and the Rome Statute).

Commentators did not seriously believe that posting this notice on a Facebook page would have any legal impact on privacy. Moreover, the Uniform Commercial Code is not really implicated here.  It is hard to see how the UCC really helps, as much as I admire those who wield its provisions by section number.  The bottom line is that one cannot take back what they have already consented to, even if the consent is to an ever changing set of terms. Specifically, all users when opening their accounts agree to Facebook’s Statement of Rights and Responsibilities (SRR). Contained within the SRR are the site’s privacy policy and its terms and policies. By opening their account and clicking the “sign up” button, all users have accepted these terms and stated they have read these policies. Therefore, one cannot alter their acceptance to these policies nor can they restrict the rights of entities who are not parties to that agreement by posting a contradictory legal notice on their page. 

While the Facebook user tactic has no teeth to it, it represents an ever present issue that consumers will face concerning terms and conditions, particularly those that companies can, and do, change frequently.  All without any additional consent. 
                                                                                                       - JSM and Raymond Alvarez

No comments: