The Problem with Every TOS You Sign

Last month, a change to the Instagram terms of service (TOS), which was scheduled to go into effect January 16th, sparked controversy as it led many users to believe that photos uploaded to the system could be used in advertisement without payment. Fortunately, the controversy turned out to be much ado about nothing as Instagram not only clarified but backed away from the new TOS.

Still, it appears that at least some damage has already been done. Some figures estimate that Instagram may have lost as much as 25% of its users after the debacle and competitors, such as Flickr, are stepping up to snatch those users up.

But even if the impasse blows over, it’s just the latest in a long line of TOS-related controversies including Google Drive, Craigslist, and many more.

However, the problem isn’t just with those sites and services, in fact, it isn’t limited to any one company or kind of company at all. The problem is with the Web itself and with the way we handle contracts.

As we discussed back in March, you sign a variety of contracts to run your site but the problem is that all of those contracts are horribly one-sided. They are all written and signed for the sole purpose of protecting the company that wrote it, not you.

This is something to keep in mind the next time you click “I accept” on a TOS, as you are giving the company you’re signing with an incredible amount of power and trust. Trust that may be misplaced.

The Purpose of the TOS

The basic function of a TOS is fairly simple: To give the company who wrote the document the legal protection they need to function.

No company in the world could keep providing services online if they could be sued for every dumb thing their users did, every problem they had or if they didn’t have the rights to the uploaded works that they need to make their service function.

In short, it’s about protecting the company that provides the service against possible legal action from both you and from others.

Most of this is fairly harmless. You are agreeing to not sue them if they suffer an extreme failure and lose your content or for displaying/manipulating the content you uploaded. Most people, would have no intention of filing suit over those things and certainly have no qualms about giving up those rights.

However, the problems arise when companies have broad terms that grant them more rights than what are actually needed. For example, for a time, Craigslist had you actively sign over full copyright of your postings, making them the sole owner if your uploads.

Where most sites only give themselves a set of non-exclusive rights to your work, leaving you the owner of it and free to post it elsewhere, Craigslist, on paper at least, restricted what you could do with the ads you wrote.

The solution, it would seem, is to just read every TOS carefully but there are two problems with that:

  1. Lack of Transparency: Most TOSes are lengthy documents written in legalese that are simply not approachable by the average user. Even if a user reads every word, which is unlikely, they may not fully understand it.
  2. TOS Changes: Nearly every major TOS debacle has not involved a new service, but an established one changing their TOS. Nearly every TOS gives the company that drafted it unilateral right to change the terms and existing users are automatically opted in to it unless they take some action on it.

In short, every TOS you’ve ever agreed to can and likely will be changed right under your feet. This means, quite literally, that you have no way of knowing what the contract you just signed will look like in five years or five months.

Why We Do It

If TOSes are so unbalanced, why do we agree to them so readily? Why do people tick “I agree” millions of times per day?

The reason is simple: Because we have to.

Imagine for a second that, instead of signing a pre-drafted agreement, you were entering contract negotiations with Facebook to set up your new account.

Facebook has thousands of servers, hundreds of employees, millions of lines of code and a network of nearly a billion users. You’re one person who wants to connect with your friends/family, promote your site and upload your photos. If you walk away, you can’t do any of the things you want with Facebook but Facebook loses almost nothing.

This would give Facebook a lot of control over the negotiations and they would, more or less, be able to force their terms upon you. After all, you’re the one getting free use of their service and they gain just another set of eyeballs for ads. As important as you are to Facebook’s bottom line, it’s not you personally that’s important, but rather, the users as a whole.

That, in turn, is a big part of why these debacles play out like they do. As a user, you don’t have the leverage to force Facebook or any other service to provide you with a different set of terms. But the users en masse certainly do. When one user leaves a service in protest, it’s barely noticed unless that person is a major trendsetter, but when a large percentage leaves, it’s often enough to tank a stock or even sink a company.

Unfortunately, there’s no good way for users to negotiate on a large scale so what happens, instead, is that a company makes unpopular changes to their TOS, the users catch wind of it and revolt publicly. They do this by generating a backlash that gains momentum until the site or service alters its language.

The problem is that this backlash is often over noting. It could be a misunderstanding or a mistake, but, usually, there’s no real danger involved when these disputes arise, as with the Instagram one.

This means that when a real threat does come up, the number of false backlashes may mean there’s not enough public interest to force real change, creating a situation akin to “The Boy Who Cried Wolf”.

That, in turn, may be the scariest reality of all.

Bottom Line

In the end, there’s no easy answer to all of this. We can’t continue relying on public outrage to steer companies to having reasonable terms. Interest and outrage are limited and will run out with time as long as there are so many false alarms. If we’re going to fix the problem in any meaningful way, we will have to work with providers to ensure that they are transparent about their TOS.

This means putting their terms in plain language, being upfront about any changes they make and explaining the purpose behind everything they are asking for.

If companies can do this, then users are less likely to think that something is being hidden deep in the legalese of the TOS and will be less likely to jump on board when someone else tries to raise an alarm.

Best of all, this forges a real sense of cooperation between users and the companies they rely upon. This turns the TOS signing process from a confrontational one where the user wonders what the contract is trying to get out of them, to a cooperative one.

Because, while a TOS will always be unbalanced, that doesn’t mean the relationship between user and company has to be.