Users’ Legal Rights Under Facebook’s Proposed “Rights and Responsibilities” (a/k/aTerms of Use)

After the firestorm of criticism last week, including on this blog, Facebook CEO Mark Zuckerberg announced (on Facebook’s blog and in a media conference call):

Beginning today, we are giving you a greater opportunity to voice your opinion over how Facebook is governed. We’re starting this off by publishing two new documents for your review and comment. The first is the Facebook Principles, which defines your rights and will serve as the guiding framework behind any policy we’ll consider—or the reason we won’t consider others. The second document is the Statement of Rights and Responsibilities, which will replace the existing Terms of Use. With both documents, we tried hard to simplify the language so you have a clear understanding of how Facebook will be run. We’ve created separate groups for each document so you can read them and provide comments and feedback. You can find the Facebook Principles here and the Statement of Rights and Responsibilities here. Before these new proposals go into effect, you’ll also have the ability to vote for or against proposed changes.

Credit where it is due: the new "Statement of Rights and Responsibilities" describes the legal relationship between users and Facebook the way that Facebook’s officers have been describing it.

In short: users retain total control over their content, and can terminate Facebook’s license at will. Users still can’t really sue Facebook for anything, but might be able to sue developers or operators of third-party applications if they breach the new terms.

In long, start with governing law:

14.1 You will resolve any claim, cause of action or dispute (“claim”) you have with us arising out of or relating to this Statement or Facebook in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.

Good news! As noted before, California has very pro-consumer laws. You’ll also notice that Facebook got rid of the class action waiver (which was likely illegal anyway) and the arbitration requirement, too. No longer must you drop $6,000 or more just to start an arbitration against them.

Then, the licensing, the part that caused so much trouble last time:

You own all of the content and information you post on Facebook, including information about you and the actions you take (“content”). In order for us to share your content and provide you with our services, you agree to the following:

2.1 You give us permission to use, store, and share content you post on Facebook or otherwise make available to us (“post”), subject to your privacy and application settings.
2.2 You may delete your content or your account at any time with the understanding that removed information may persist in backup copies for a reasonable period of time (but will not be generally available to other users), and that content shared with others may remain until they delete it.
2.3 For content that is covered by intellectual property rights (like photos and videos), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of (“use”) any content you post on or in connection with Facebook. This license ends when you delete your content or your account.
2.4 We always appreciate your feedback or other suggestions about Facebook, but you understand that we may use them without any obligation to compensate you for them (just as you have no obligation to offer them).

(Emphasis mine). Finally! No more fussing around with ambiguity: Facebook twice reiterates that their license is "subject to your privacy and application settings," and that deleting either your content or your account terminates the license to that content.

That is exactly how users expect the system to operate. Facebook also omitted the annoying and erroneous "irrevocable" from the license.

I’ll have more to say later. But let me raise one really interesting issue:

9. Special Provisions Applicable to Developers/Operators of Applications and Websites

If you are a developer or operator of a Platform application or a website using Connect (“application”), the following additional terms apply to you:

9.2 When users add your application or connect it to their Facebook account, they give permission for you to receive certain data relating to them. Your access to and use of that data will be limited as follows:
9.2.1 You will only use the data you receive for your application, and will only use it in connection with Facebook.
9.2.2 You will make it clear to users how you are going to use, display, or share their data.
9.2.3 You will not use, display, or share a user’s data in a manner inconsistent with the user’s privacy settings without the user’s consent.
9.2.4 You will delete all data you received from us relating to any user who removes or disconnects from your application unless the user gives you permission to keep it.
9.2.5 You will delete all data you received from Facebook if we disable your application or ask you to do so.
9.2.6 We can require you to update any data you have received from us.
9.2.7 We can limit your access to data.
9.2.8 You will not transfer the data you receive from us without our prior consent.
9.3 You will not give us data that you independently collect from a user or a user’s content without that user’s consent.

That would appear to make users "third-party beneficiaries" to Facebook’s relationship with developers / operators of Facebook or Connect services. Which means users would likely have standing to sue if that developer / operator violated the terms, including violations of privacy settings (under 9.2.3).

Here’s a California appellate court from just two weeks ago:

"Under Civil Code section 1559, a third party can enforce the terms of a contract ‘made expressly for the benefit of [the] third person.’ ‘Expressly’ in this context is interpreted to mean ‘merely the negative of ‘incidentally.” (Gilbert Financial Corp. v. Steelform Contracting Co. (1978) 82 Cal.App.3d 65, 70 [145 Cal. Rptr. 448].) The contract need not be exclusively for the benefit of the third party in order to permit enforcement, and the third party does not need to be the sole or the primary beneficiary. Further, the third party need not be identified as a beneficiary, or even named, in the contract. (Prouty v. Gores Tecology Group, supra, 121 Cal.App.4th at pp. 1232–1233.) ‘If the terms of the contract necessarily require the promisor to confer a benefit on a third person, then the contract, and hence the parties thereto, contemplate a benefit to the third person. The parties are presumed to intend the consequences of a performance of the contract.’ (Joson v. Holmes Tuttle Lincoln-Merc. (1958) 160 Cal.App.2d 290, 297 [325 P.2d 193].)"

National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc., No. A120072, 2009 Cal. App. LEXIS 170, at *25–26 (Cal. Ct. App. Feb. 11, 2009).

Here’s the statute itself:

A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.

Cal Civ Code § 1559 (2008).

That’s great for users, but I’m sure developers and operators will have something to say about it Are they ready to be legally bound to users by Facebook’s terms?

TweetLikeEmailLinkedIn
  • Jason

    Hey Max,
    Got a question for you, I play a game on Facebook, this game is a very competitive wargame. A tactic that seems to be gaining traction, is to use a seperate link in Facebook, not connected to any content whatsoever, that lets you send an abuse complaint, if 12 to 15 people use this to complain about you, your facebook account gets disabled, even though no TOS are being violated on either Facebook,or the 3rd party application. So theoreticly, I could ask 15 of my friends to go to this Facebook link, report YOUR account for spamming information to me, and you would get your account canceled. Is this grounds for sueing FB? I mean, if I follow all their TOS and they cancel my account with no reason, or no proof. arent they breaking some type of fair use contract they have established with me?