On the evening of Friday, January 8, 2021, Twitter took the unprecedented move of permanently suspending the account of the sitting President of the United States of America. Unless you've been living a quaint life devoid of the internet for the past four years, any reader should recognize that Twitter was the President's preferred communication tool. Around that same time, Facebook, Instagram, Twitch, Reddit, Snapchat, YouTube, Discord, Shopify, Stripe and even Pinterest also shut down the President's various accounts. The impact was swift and pervasive and most notably will make it very challenging to purchase a particular branded red hat.

This post will not venture anywhere near a discussion of the reasons for the suspensions. However, in the wake of these suspensions, a question around the power inherent in Terms of Use/Terms of Service has risen once again. These various sites, which control the thoughts, feelings, opinions, and desires of the majority of the world's population, also seem to hold inordinate power when it comes to the removal of any given user. Is that power unlimited? Are Terms of Use, draconian as they may be written, nonetheless legally binding? This blog explores this question in more detail.

So Much Winning: Platforms have largely unlimited power

For those looking for the nugget of wisdom here, the reality is that Terms of Use are largely unconstrained in their application. If the Terms of Use provide a Platform with the ability to terminate any user's account, at any time, for any reason, the user is effectively out of luck. For the free speech/freedom of expression crowd, courts in both Canada and the United States have held that restrictions on these rights generally apply to governments, not private enterprises. Furthermore, notwithstanding that a social media influencer may be hauling in millions in revenue, freedom of speech does not also guarantee the freedom to commercialize that speech.

At best, a Platform exercising unrestricted powers over users may risk alienating those same users. While beyond the scope of this blog post, there are multiple examples of key influencers leaving one Platform for another where the original Platform was deemed too heavy-handed in the application of its Terms of Use. That can have very large impacts on the user base of that Platform (and ultimately the advertising revenue flowing through that Platform).

The Least Reviewed Document You've Ever Seen: Legalities of Terms of Use

It should come as no surprise that Terms of Use remain largely unread and unreviewed. It is their hidden/relegated status at the bottom of a webpage (or embedded within some App) that often gives rise to arguments about their enforceability. Unfortunately for the ignorant and dissatisfied, their relegated status does not provide an opening for claims of unenforceability.

In Canada, there is case law to support both (i) an extremely wide discretion to creators of Terms of Use, and (ii) the ease of consent to Terms of Use, in most cases simply requiring access of a website or app to prove user consent. By way of example, readers should review a B.C. case from 2011 concerning Century 212 and Rogers Communication. From this case and others, we can glean a number of legal principles applicable to Terms of Use:

  • The lack of a "skull and crossbones" disclaimer upon entering a website does not endanger the legal enforceability of Terms of Use
  • Clickwrap (i.e. clicking to confirm consent) and browse/scroll wrap (i.e. browsing or scrolling an app or website to confirm consent) agreements are legally enforceable
  • The interaction of business owners and customers through a Platform is no different than a bricks and mortar shop of yesteryear; the shopkeeper is still permitted to control access to his or her shop as they see fit
  • If the Terms of Use are overly burdensome to users, they may require more explicit mention or explicit consent (for example, there is a difference between a "buried" term saying the Platform owns all data on the Platform versus another requiring the user to offer up extremely sensitive personal information to the Platform without the user's knowledge or consent)

In the United States, by contrast, the author understands that U.S. courts are generally more reluctant to enforce browse/scroll wrap Terms of Use if there are issues with notice as there is no active acceptance, as compared to clickwrap agreements. See this 2009 case concerning Overstock.com for an example. The authors wish to be clear that neither are U.S. practitioners, so U.S. legal advice should be sought for any matter concerning enforceability of Terms of Use in the United States of America.

Notwithstanding this seeming invincibility, there seems to be some judicial appetite for forcing Platforms to make an honest attempt at drawing Terms of Use to the user's attention. While browsewrap is still by far the norm, Platforms might do well to gravitate towards explicit clickwrap agreements. Making it expressly known that "this is our house and we make the rules" might save some pain down the line.

Make Terms Great (Again?): Best Practices for Businesses

As former Obama Chief of Staff Rahm Emanuel once eruditely said: "never let a good crisis go to waste". It appears Churchill may have been the original source of this quote, but the authors felt Mr. Emmanuel's usage was more topical given the context of this post. For Platforms and businesses generally, watching this chaos unfold, there are some lessons to be learned when it comes to Terms of Use:

  • Keep it Simple - Overly verbose Terms of Use, written in archaic legalese, will not be understood by users. There is a plain language movement generally in legal circles, and it has become more pervasive in Terms of Use development. Better practices around visual representation of terms, plain language summaries, and in-line summaries, are thankfully becoming more regular. They should be used where possible.
  • Keep it Broad - In order to ensure near-complete control over the Platform (or website or app), the Terms should provide near-absolute purview to the owner to remove users as the owner sees fit. This should critically include being very clear that: (i) the owner owns everything (i.e. all intellectual property) on the Platform, (ii) the user has an extremely limited, personal license to use the Platform, (iii) the owner is not responsible for, nor warranties, any content on the Platform, (iv) the owner's liability to users, if any, is limited to the amounts paid by the user to the owner to access the Platform, (v) disputes, if any, are to be interpreted in accordance with, and litigated in, the preferred jurisdiction of the owner, and (vi) the owner can change the Terms at any time, for any reason, and will do its' best to bring those changes to the attention of users.
  • Keep it Commercially Reasonable - While the previous bullet suggests a "god mode" approach to Terms of Use, Platform owners have to balance the commercial interest. Overly restrictive terms may disenfranchise popular users and thereby decrease the user pool. A Platform, or any online business, has a value that generally correlates with its' user base. If YouTube is seen as overly restrictive compared to Twitch, YouTube will see a loss of "star users" to Twitch. This will, more importantly, give rise to a loss of advertising revenue and other revenue generation opportunities. For that reason, Platforms and other businesses should at least ensure their Terms are in line with similar Terms adopted in their industry.
  • Keep it Visible - Regardless of whether the Platform (or website or app) adopts a clickwrap or browse/scroll wrap approach, the Terms (and any "I agree" or check the box mechanisms) should be relatively visible to users. While standard convention is to hide these away on the bottom of web pages, it is worth Platforms considering whether certain events demand drawing user's specific attention to terms. For example, when a user creates an account or purchases a good or service through the app, that is likely a good opportunity to at least provide a highly visible hyperlink to the Terms of Use (and perhaps also require an "I agree I read the Terms and consent to their application" box).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.