Facebook: An aftermath to the aftermath
Following my article about the Facebook Terms of Service debacle last week, I received the some feedback regarding my outrage at not having been informed about the change by Facebook. Naturally enough, that feedback referenced the fourth sentence:
We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice.
This is fair, in that I had not really considered this in the original article. But the more I think about it, the less satisfied I am with the thought that Facebook might try to use this clause to defend their right to make the changes under discussion.
My initial reaction was that just because Facebook includes this clause does not mean it is enforcable — after all, they could conceivably add the right to take posession of your car and marry your first-born daughter. The right they reserved to change the agreement does not give them the right to change it in any way they see fit; they need to keep within the general spirit of the original deal or courts will disregard their changes if they have not been approved by the other party.
So the question becomes — did Facebook alter the nature of the contract to such a degree? Not being a lawyer, my opinion does not count for much, but I think that they did. The Facebook TOS can be whittled down to two things:
1. The user agrees to give Facebook all rights to uploaded content.
2. The user can end the agreement at any time by cancelling their account.
Changing the deal from “you can opt out at any time” to “we own whatever content you add, forever” is a fundamental change in the deal users had been offered. To this extent, I think that when Facebook goes back to “we own your data forever” (it’s either that or a change in strategy), they will need users to opt-in to the new TOS.
Otherwise they will face challenges in every jurisdiction in which they operate – many of which might turn out successfully.
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