Social Media Seeks Control Through TOS Enforcement

Monday, May 21, 2012

David Navetta

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Users of social media platforms should take notice of a changing legal strategy by some companies where litigation is pursued or threatened based solely on violation of a site’s Terms of Service (“TOS”).

So far, social media companies have only sought to squash undesirable behavior on their platforms from third party commercial entities, such as spammers or those seeking password sharing, but in the future such litigation could be viable against individual users.

In early April, Twitter filed a lawsuit against four entities that the company said were the most prolific spammers on the service. Using software tools, the spammers would auto-generate tweets, replies and follows in order to encourage unsuspecting users to visit illegitimate and often malicious sites.

After amassing a high volume of accounts, the spammers would then resell those accounts to websites seeking traffic. While demanding monetary restitution of $700,000, Twitter claims in the suit that the spammers are liable for breach of contract for violating provisions of the TOS that prohibit creating duplicative accounts for the purposes of tweeting misleading links.  

The accounts are packaged and sold to third parties who then spam users with unwanted links. This breach of contract claim is the sole claim for relief Twitter alleges in the complaint.

This is significant because in the past platforms have utilized federal laws such as CAN-SPAM, which prohibits sending misleading electronic communications, to punish the most egregious spammers. If Twitter prevails in this lawsuit, it puts all users on notice that there is monetary liability for breaching a platform’s TOS, which significantly expands the ability of a social media company to reign in prohibited activity by users.

Facebook has also recently threatened to enforce their TOS as a way to limit undesired behavior by users. In a rebuke to employers who sought prospective employees’ passwords during interviews, the company stated that the Facebook TOS prohibit a user from sharing passwords with any third party, and suggested that the company might take legal action for breach of contract against employers that force a user to violate the TOS by sharing a password.

Moving forward, individual users should be wary of how social media networks enforce their TOS in court, particularly concerning copyright and trademark violations. Currently, under the Digital Millennium Copyright Act, the controlling federal law concerning copyright violations, platforms are not directly liable to copyright holders for the copyright violations committed by social media users, such as when a user uploads a copyrighted video to their personal page.

However, some pending litigation would seek to make a platform directly liable for user violations, which may encourage social media companies to shift any monetary damages to the user via a breach of TOS suit.

Social media platforms may be signaling to all users, not just malicious entities, that violation of TOS could be treated as vigorously as violation of state and federal law.

Cross-posted from InfoLawGroup

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