Facebook Rescinds Its New, Unfriendly Terms of Use in Favor of Its Old, Unfriendly Terms of Use

[Update - see also 25 Things About Facebook's Terms of Use and Your Rights, discussing the current problems and where we go from here.]

Facebook responded swiftly to the social media uproar over its new Terms of Use by reverting to the old Terms.

Great news, with one problem: the old Terms aren’t that great. Mark Zuckerberg described Facebook’s old Terms as "overly formal and protective," and promised to revise them promptly.

He’s being euphemistic.

Some of the "old" (now "current") Terms were downright illegal and unenforceable, like making users responsible for checking for updates to the Terms and making users waive class action status, as covered in my first post.

Other "old" Terms followed the carpet bombing and kitchen sink methods of contract drafting, with the same point made multiple times in multiple excessive ways that rendered the Terms a farce.

Here’s one example: in response to the controversy, Facebook started a Group to discuss the Terms, "Facebook Bill of Rights and Responsibilities." The Discussion Board for that Group was promptly swarmed by racist trolls.

That’s a problem for the trolls themselves, as the "User Conduct" section says users "agree not to use the Service or the Site to:"

upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;

Awfully broad, no? The "new" (now "rescinded") Terms narrowed that whole paragraph to "intimidate or harass any user."

But under the "old" Terms such trolling is  also a problem for Facebook, since their "User Content Posted on the Site" section says:

You are solely responsible for the photos, profiles, messages, notes, text, information, music, video, advertisements, listings, and other content that you upload, publish or display (hereinafter, "post") on or through the Service or the Site, or transmit to or share with other users (collectively the "User Content"). You may not post, transmit, or share User Content on the Site or Service that you did not create or that you do not have permission to post.

Who "published," "displayed," "transmitted to" or "shared with other users" the messages in that Group? Why, the creators and administrators of that Group, Simon Axten, Mark Zuckerberg, and Barry Schnitt. All Facebook employees, one of them the CEO.

Who are now arguably made responsible for those messages.

Hmmm. Probably not what Facebook intended or what users expect.

I’ll have more about what was different in the "new" (now "rescinded" ) Terms and what Facebook should put in their Terms.

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  • http://palimpsest.typepad.com/frogsandravens Rana

    I’d be interested to hear your thoughts on the evolving draft proposal for a new TOS being discussed in this thread on FB:
    http://www.facebook.com/topic.php?topic=7237&post=37129&uid=69048030774#/topic.php?uid=69048030774&topic=7237

  • http://www.litigationandtrial.com/2009/04/articles/the-business-of-law/the-long-view/linkedins-terms-of-use-we-own-all-content-exusers-agree-to-update-our-database-forever/index.html Litigation and Trial – Max Kennerly

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