The internet was once a place where websites' terms of use promised nothing beyond a threadbare revocable license to use the site, while disclaiming every conceivable obligation or warranty, ensuring maximum legal protection for the website provider.
But more recently, many online platforms are bowing to pressure from (mostly foreign) regulators and giving their terms of use a complete makeover. They have deleted the disclaimers and legalese of old and introduced new statements of aspiration that tout the safety, security, benefits, and positive experience of their offerings to make users feel better about using the platform.
While this may seem like a positive improvement for both the platform and its users, overhauling terms of use to be as user-friendly as possible has plowed fertile ground for plaintiff lawyers to plant new theories of liability. This is especially true where the new additions to the terms of use cross the line from stating aspirational goals to making legally enforceable promises—leaving online service providers exposed to tort and contract claims that pierce the shield of immunity provided by Section 230 of the Communications Decency Act.
Doe v. Grindr
This line was tested in a recent decision from the US Court of Appeals for the Ninth Circuit, in which the court examined whether a popular social encounter platform could be liable for breaching an alleged promise "to create a safe and secure environment for its users."
Grindr had allegedly been used by criminals to meet up with a teenage user off-platform and commit violent crimes against the teenager, and the plaintiff sought to use Grindr's representation that it was "safe and secure" to hold it liable under various legal theories. As in all such cases, the defendant asserted Section 230 as a defense to these claims.
The court summarized the relevant law by stating "[Section] 230 does not bar causes of action seeking to enforce contracts or promises unrelated to a defendant's role as a publisher or speaker of third-party content."
It then examined Grindr's claim the app is "designed to create a safe and secure environment for its users" and held that this claim was merely "a description of its moderation policy" and that "the statement that an interactive computer service provider will create a safe and secure environment is too general to be enforced."
Bride v. YOLO
The Ninth Circuit in Doe contrasted the claim before it with the promissory statements that had been enforced in other cases—specifically Est. of Bride v. YOLO Techs Inc., a case decided six months earlier by the same court.
In Bride, the defendant offered a service allowing users to ask questions and send and receive anonymous responses. YOLO's notice of terms told users that YOLO "has no tolerance for objectionable content or abusive users." The platform further warned its users that violating the terms of service would result in a ban and having their identity revealed.
The plaintiffs alleged they suffered harassment and bullying on the platform and that YOLO broke its promise to unmask, and thereby prevent, bullying and abuse. Even though the statements by the platform about the consequences of violating its terms didn't use the word "promise," the court held that the "representation to its users that it would unmask and ban abusive users" was no different than a promise.
The court rejected the arguments that YOLO "did not intend to induce reliance on the promise" and that "the statements were not promises made to Plaintiffs but instead warnings to others" because the statements were an "outwardly manifested intention to create an expectation on the part of another" that "generates a legal duty"—a duty the court said it would enforce.
And because the court held this to be a legal promise, Section 230 was no defense. "Section 230 prohibits holding companies responsible for moderating or failing to moderate content. It does not immunize them from breaking their promises," the court wrote. "Even if those promises regard content moderation, the promise itself is actionable separate from the moderation action."
Where's the Line?
These two contrasting decisions draw a clear line in the sand for consumer-facing platforms that don't want to jeopardize their Section 230 immunity or otherwise subject themselves to new liability when failing to meet a user's expectations.
Statements of aspiration and description can be made without fear of incurring new liability if they are worded correctly and contain appropriate disclaimers or caveats. On the other hand, statements that the company "will" do or "does" do something will be construed as binding promises absent clear disclaimers.
If the statement can be tested or measured for failure by objective criteria, it is more likely a promise; but if it can only be viewed through subjective opinion, it is not. The examples below illustrate how companies might want to rephrase certain statements so that they are properly construed by the courts.
Example 1: "We will terminate the accounts
of users who violate our community guidelines."
Can be revised to say: "We may
terminate the accounts of users who in our
view violate our community guidelines."
Example 2: "You can be confident that you
will be safe from bullying and harassment on our
platform."
Can be revised to say: "We have worked hard to
make this a platform that is safe from bullying and
harassment. But if you encounter content that falls
below our standards, please report it to
us."
Example 3: "Our revenue sharing program
will allow you to make real cash from your creations."
Can be revised to say: "We hope that
through our revenue sharing program, you will be able
to make real cash from your creations."
Example 4: "We will provide the best user
experience we can."
Can be revised to say: "We work hard
to provide the best experience for
you.
Following this guidance, online platforms can significantly reduce their potential liability and litigation costs while achieving the user-friendly makeover they seek for their terms of use.
Previously published Bloomberg Law.
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