Website Terms and Conditions: The Good, the Bad and the Ugly

When I used to design and develop smaller websites than I do today, I was occasionally asked by clients if I had a pro-forma set of website Terms and Conditions I could throw their way.

I always referred them to the Internet – at the very least – to find and then adapt website Terms and Conditions that were close to the terms they were prepared to enter into with their users.

The Internet has come a long way since those days and whilst your website Terms and Conditions might remain a small, hidden link buried among other links in your footer, you need to think more about your Terms than this.

In this blog, I am going to talk about The Good, the Bad and the Ugly of Term and Conditions.

 

Website Terms and Conditions: The Good

I wrote a blog many, many years ago about The Guardian (Newspaper) website and the backlash it received from users over its terms and conditions and specifically, how users of its website reacted to The Guardian’s treatment and publishing of its Terms and Conditions in hosting an online forum on the Iraq war.

In simple terms, users of the website were invited to participate in an online forum on Iraq and leave comments on how they felt about the war and so forth.

No problems there.

What The Guardian website didn’t tell users – or at least not specifically and clearly – was that their comments could be used in its print, newspaper publication.

And indeed, they were.

Rightly (or wrongly), users became particularly upset when they found their comments in print.

It wasn’t what they had signed up for or expected.

Terms and conditions be damned.

I say “or wrongly” (see above), because in the grand scheme, The Guardian’s actions aren’t that big a deal.

Eight years on from writing my original blog, I still suspect it was the painful 10% of any website audience (the audience that ‘knows its rights’, ‘knows Fair Trading’ and demand answers anytime it thinks its privacy is breached) that complained and made the noise.

The audience doesn’t matter however, especially if one is to be sensibly risk adverse.

At the very least, users have a reasonable right to be clearly notified that their contribution to a website will be used elsewhere, irrespective of whether it is buried in the website Terms and Conditions or not.

The Guardian learnt its lesson and changed its policy such that any term of use even bordering the erroneous or impinging on the ‘self-appointed’ rights of Internet users was either quickly scrapped or even better, made very clear in bold type.

Users could make an informed decision and that is all they wanted.

This is the good of Website Terms and Conditions…

 

Website Terms and Conditions: The Bad

I watched Clint Eastwood’s movie The Good, The Bad and The Ugly a few weeks back.

The ‘Bad’ is a character called Tuco and he is a pretty bad guy; for purposes of this blog, we’ll call Tuco, Instagram.

Many of us are aware of Instagram’s somewhat recent screw-up over its Terms and Conditions.

Though in case you’re not aware, Instagram recently updated its website Terms and Conditions.

The announcement of the update naturally caused users to focus on the new Terms and the changes Instagram was proposing.

Users were shocked by the changes they read and demanded blood; who was Instagram to own their images etc etc etc?!

Users threatened to walk away in droves and Instagram was initially like a deer in headlights.

Changing its terms and conditions is not what makes Instagram bad however.

Instead, Instagram was bad firstly in how they ultimately responded to the whole episode and secondly, in how the whole episode will invariably shape the shady behaviour of other websites and Internet companies going forward:

1. Once the noise of angry Instagram users became too loud to bear, Instagram famously reverted to its previous Terms and Conditions, no more questions asked.
   
   Users cheered everywhere, having forced a billion dollar Internet Company to fall on its sword. 
   
   The joke however… was on the users. 
   
   You see, the previous Instagram Terms and Conditions were not as good to users as the new Terms and Conditions. 
   
   None of those bleating users had in fact ever read the previous Instagram Terms and Conditions and so didn’t know what they were gaining or missing out on. 
   
   The users just felt aggrieved. 
   
   Instagram is firstly at fault for not simply and clearly explaining the changes and the benefits its users would receive from the new Terms, right from the get-go. 
   
   Instagram’s second fault, is that it allowed poorer terms and conditions to be imposed on its users without any rear-guard fight or argument.
   
   It caved. 
   
   And its users are far worse off. 
   
   Bad.


2. The second ‘bad’ is the precedent that the whole Instagram Terms and Conditions saga has unfortunately left.
   
   Instragram was trying – to some degree – to be noble in notifying users of its change to its terms and conditions; however poorly it did it.
   
   The problem is that the noise it made and the poor execution of the whole exercise means that any self-respecting Internet business out there with traffic and a database to protect, is going to be far more suspect in how they roll out any changes to their Terms and Conditions.
   
   And that is a bad thing for users.
   
   It is far better that as users, we are aware of changes to website Terms and Conditions and not the situation where changes are made under the cloak of murkiness and fog.
   
   Bad like Tuco.

 

Website Terms and Conditions: The Ugly

Here’s where it gets ugly…

And not because the case study I’m using here – Zappos – was deliberately ugly; but because the outcome of their actions was ugly.

Zappos is an enormous fashion eCommerce website; they’re part of Amazon.

At the beginning of 2012, Zappos had a major data breach affecting around 24 million of its customers.

Lawyers circled, filing dozens of class actions, though Zappos tried to shoo them away, arguing that its Terms and Conditions contained an arbitration clause; a clause designed to keep class actions and the like out of expensive and unhelpful courts.

Website Terms and Conditions (often referred to as website User Agreements) can be one of two types:

 

1. Clickwraps or Clickthrough Agreements:
   
   A Clickthrough Agreement is one where a user needs to acknowledge their consent with the website Terms and Conditions; say clicking a checkbox and pressing Submit.
   
   It is unambiguous and the user is offered a consistent and clear opportunity to read the website Terms and Conditions and then to proceed.
   
   Or not.
   
   Courts love Clickthrough Agreements.


2. Browsewrap Agreements:
   
   A Browsewrap Agreement attempts to bind users of a website through the implication that users understand and have agreed to a website’s Terms and Conditions by virtue of being on and browsing the website.
   
   The onus is on the user to locate the website Terms and Conditions, read them and then decide whether to remain on the website or go.

 

As a web designer, Browsewrap Agreements are certainly my preference because they represent one less hoop for website users to jump through; less friction.

The problem is that US judges and courts consistently view Browsewrap Agreements as ‘no contract’.

Bugger.

The view – quite rightly – is that no reasonable user would have reason to locate and read through website Terms and Conditions, especially if it is not pointed out to them.

Subsequently, reasonably assumed and reasonable Terms and Conditions are all well and good, though Terms and Conditions that attempt to bind users into an agreement – such as arbitration – without the user having a reasonable opportunity to understand and agree to this, will very likely be struck out.

In the instance of Zappos, this meant that it was open to class actions and fighting it out in US courts.

There exists a further possible challenge for those websites relying on Browsewrap Agreements and that is how they can claim to notify users of changes to their website Terms and Conditions, given that users are not required to confirm that they have read and understood the website Terms and Conditions either with each transaction or in the first place.

It is true that with a Clickthrough Agreement, there remains a challenge in that you should probably make some effort to email existing users with changes to your website Terms and Conditions or make clear to users on your website, when you changed your website Terms and Conditions and what these changes were.

Though this is a challenge I reckon a quick whiteboard session could handle away.

It is possible that your website is not the sort of website that can reasonably handle a Clickthrough Agreement by virtue that you do not have any interaction with your users other than to publish content.

This said, such a website surely wouldn’t need a User Agreement or at least, website Terms and Conditions that contained anything unusual?

Unfortunately for Zappos, its use and reliance on a Browsewrap Agreement – something pretty much ubiquitous across the web – meant it was exposed.

And sued.

Ugly.

 

No longer the Wild West I’m afraid

When I watched The Good, the Bad and the Ugly the other night, the Wild West was at its best.

Shoot anyone, trick anyone, do whatever you want.

The WWW is still sometimes referred to as the Wild Wild Web and that’s because it comes from a strong background of Internet cowboys and Internet cowgirls.

Times are a changing however.

Courts are catching up and take a very dim view of activity that isn’t kosher or fair to users.

We’re now all pretty suspicious because of the early actions of many Group Buying websites and nobody buys online without knowing a website’s policies on returns and freight.

Frigging with users is a no no and this means we need to draw a line under how we handle and present our Terms and Conditions.

We also need strategies to ensure our users can easily read and understand our website Terms and Conditions and be notified when we make changes.

Don’t see your Terms as a negative; turn them into a positive and win over your users.

And if your embarrassed of any part of your website Terms and Conditions, you should be.