Last month, users of Facebook raised a loud ruckus when the social networking site changed its terms of service . This spawned debate over who owns user-generated content in the online social media world, but there was a far more important legal issue at play. While users j oining Facebook after the change in the policy may have given some form of informed consent in the process of joining, existing users were given inadequate notice and their consent was not sought or received. Facebook had violated federal law against unfair or deceptive trade practice, since a business may not unilaterally alter its policies and use previously collected data in a manner that is materially different from the terms under which the data was originally collected.
More recently, the Ninth Circuit Court concluded on July 23, 2007 ( Douglas v. US District Court ex rel Talk America, No. 06 - 75424 ) that, “Parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side.”
In response to the Douglas case, law professor Eric Goldman suggested a way to change the terms of a contract/policy effectively and legally.
“Include a provision in the initial contract saying that the Web site can amend the terms unilaterally after providing notice to users. Ideally this is coupled with a bona fide right to reject the terms, but this would involve giving the users an ability to terminate the contract. Even if not, merely giving notice would appear to satisfy the Ninth Circuit here, at least with respect to unconscionable amended provisions.”
Of course, figuring out how to notify people is key – mass e-mails may get flagged as spam or phishing, and notifying respondents upon their return to your Web site may not help if they never return or do so infrequently. Professor Goldman recommends an approach used by eBay, which lets users configure in advance how they wish to be notified of changes.
Disclaimer: The information provided in this article is for guidance and informational p urposes only. It is not intended to be a substitute for legal advice. MRA advises all parties to consult with private legal counsel regarding the interpretation and application of an y laws to y our business.