See why it's increasingly important for users that social sites and services have clear, well-enforced Terms of Service.
by Anne Collier
Last week I wrote that two cases put the spotlight on sites' Terms of Service, and - whatever legal scholars say (I'll get to that in a minute) - this is a good thing. It's good because it sheds light on one part of the social Web that needs public awareness.
Now a timely illustration. Long-time Twitter fan and blogger Ariel Waldman has shined her own spotlight on how Twitter, another social Web service, isn't enforcing its Terms of Service and to what effect. [For more on the service, see "Do you Twitter?"]
"Overall, Twitter is a great platform to connect with friends and co-workers," Ariel writes. But, she adds, "considering the social-network sphere as it exists today, most people would assume that Twitter would be prepared to react and take action against TOS [Terms of Service] violations...."
The reason why she brings up the site's TOS is because a fellow Twitter user harassed her for months starting in June 2007. The harassment escalated, she says, with the user putting her full name in abusive posts in a public forum. "I would periodically report cases of continuing harassment (some of which spread between Flickr and Twitter). Twitter would take no action while Flickr would immediately ban and remove all traces of the harassment."
This past March, as it continued, she says she wrote to Twitter, including Web pages with examples of the abuse, and asking that the user be removed. Citing Twitter's 4th Term of Service - "You must not abuse, harass, threaten, impersonate or intimidate other Twitter users” - she told them, "Honestly, I believe this harassment has gotten way out of hand for too long. I am writing to you ... to remove this user for consistent long-term harassment."
Twitter's response after three days, she says, was: “Unfortunately, although [this user’s] behavior is admittedly mean, [s/he] isn’t necessarily doing anything against our terms of service.... We can’t remove [this user’s] profile or ban [this user’s] IP address; [they’re] not doing anything illegal.” For some reason this respondent was confusing what's illegal with what violates the site's TOS or community rules.
Ariel writes that she copied Twitter CEO Jack Dorsey on her reply, which said:
“I don’t believe this is a case of illegal activity - this is a clear case of harassment which is outlined in your TOS...."
Dorsey asked for a phone conversation with her (see her blog post for her notes on the call, March 19), at the end of which he asked what action on Twitter's part would make her happy. She answered as before, she writes: that the harasser be banned or at least warned.
"Jack didn’t get back to me until I emailed him on April 9 with eight new instances of abuse that included my full name and email address...." The CEO then did respond, Ariel writes, with this email:
“Ariel, apologies for the delay here. We’ve reviewed the matter and decided it’s not in our best interest to get involved. We’ve tasked our lawyers with a full review and update of our TOS. Thank you for your patience and understanding and good luck with resolving the problem. Best, Jack.” [See the bottom of Ariel's post for nearly 300 comments from readers.]
When she wrote about all this in Twitter's out-sourced customer support forum at GetSatisfaction.com, she did get two more responses from the company, one of which said in part: "Twitter is a communication utility, not a mediator of content." In response to that, Ariel later writes, "A decent portion of Twitter users see the service as a community (similar to Flickr), while Twitter chooses to view themselves as a “communication utility” (similar to AT&T)."
An interesting distinction. Courts actually have put social-networking sites in the same category as phone companies in their interpretations of the Communications Decency Act. And it is true that only the people involved can fully resolve an argument between them, regardless of whether it happens on the phone or in a social-networking site (for one reason, because no matter how many times a site's customer-service department might bar a harasser or take down defaming profiles, more comments or profiles can pop up under a new screenname).
However, let's look at this a little more closely:
1. Even phone companies get involved if customers report being stalked or threatened.
2. Ariel was not asking Twitter to change the harasser's behavior or resolve his apparent problem with her; she was asking that Twitter warn or ban him for violating the site's TOS with public harassment that included her full name and email address.
3. Interestingly, society as a whole - not just users, but parents and attorneys general too - has increasingly viewed and treated social sites as communities that need to be accountable and abide by and enforce their rules of operation as a baseline best practice - even though the US's social-networking industry hasn't yet started a discussion of social site best practices (for the UK's discussion see my posts on the Byron Review and the British Home Office's guidance for social-networking best practices).
Now for the part about what legal scholars are saying
About the Drew indictment, that is. University of Pennsylvania law professor Andrea Matwyshyn told a Wired blogger of her concern that, "if successfully prosecuted, the case [against 49-year-old Lori Drew about her involvement in the Megan Meier case] could set a bad precedent for turning breach-of-contract civil cases into criminal ones."
* The UK Home Office's "Good practice guidance for the providers of social
networking and other user interactive services 2008"
Thanks to tech educator Anne Bubnic of the California Technology Assistance Project for pointing out Ariel Waldman's post.