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We hardly give them a second glance, but terms of service (ToS) can have a huge impact on our legal status and online rights. OWNI's infographic helps you to cut through the legal jargon and microscopic print.

by Marion Boucharlat, Andrea Fradin & Lionel Maurel (Calimaq) On April 5, 2012

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In the American TV shows, the guys being arrested by the police are first read their rights. On the web, users could also do with having “their rights read”. As we surf, we are constantly in the process of accepting the terms and conditions of use for the services we use, which have a huge impact on our legal status.

We generally accept these terms of service (ToS), the endless pages of small print and legal jargon impenetrable to mere mortals, without reading them, simply by ticking a box. They nevertheless have a significant impact on our online rights, in particular with regard to the protection of our personal data, as well as the ownership of our content.

To help clear a path through this ToS jungle, OWNI is publishing an infographic (see it in full at the bottom of the article) analysing the terms of service of four Web giants: Google, Facebook, Twitter and Apple. A picture is worth a thousand words after all, something particularly true of ToS, not exactly noted for their clarity.

ToS: take it or leave it?

ToS derive their strength from the fact that they are not negotiable by users of online services and, once accepted, the user is voluntarily bound by these rules. But maybe this new form of “voluntary servitude” isn’t inevitable. Internet users seem to be becoming increasingly aware of the importance of these contractual conditions, and the fact that they possess the power to collectively bring about changes to them.

Right now, on the emerging social network Pinterest, a “virtual protest” is taking place that could lead to important changes in the site’s terms of service. More than 45,000 people have pinned as their profile picture a protest sign, which reads: “Dear Pinterest, Please Change your Terms or I’m Leaving“.

Several weeks of turmoil have followed repeated accusations of copyright infringement, forcing Pinterest to take user discontent seriously. The platform changed its ToS in order to make them less appropriative, notably giving up the possibility of selling users’ content to third parties.

Collective action of this sort has proved successful in the past. In 2009, when Facebook changed its ToS in order to grant itself “all rights, forever” over the personal content of its users, it triggered an online pitchfork mob who successfully pushed back against the social media giant, then at the height of its powers. The episode culminated in the publication of a charter of rights and responsibilities, leading to a more balanced relationship between the platform and its users, even if Facebook has hit the headlines several times since due to further changes to its privacy settings.

The same phenomenon occurred during the Nymwars of 2011. After a ferocious struggle to force Google + users to create accounts with their real identities only, the Mountain View company eventually relented to pressure to accept pseudonyms.

No one is ignorant of the law (even ToS…)

But the mobilisation of Internet users is not always sufficient to achieve more balanced Terms of Service. OWNI’s infographic lays out the precarious condition of our rights faced with giants such as Twitter, Facebook, Apple or Google.

To what extent can the state, through laws, protect citizens against the more troubling excesses of social media, particularly in terms of the exploitation of personal data? While examples of theses excesses continue to appear at an alarming rate, recent events have demonstrated that states are not completely powerless to put pressure on big web companies.

In the US, the powerful Federal Trade Commission succeeded in imposing in November 2011, by mutual agreement with Facebook, a 20 year parole period for the social network. During that time Facebook must comply with regular independent audits concerning its use of personal data. Even more importantly, Facebook has committed to obtaining the explicit consent of users when changing its terms of service, including its privacy settings.

In reality, as illustrated by the infographic, ToS are not just complex – they are constantly being modified and updated. Users, after signing up just once to a service, are deemed to implicitly accept all of these changes. This type of clause has proved to be particularly dangerous and unfair. It’s how Twitter, for example, was able to present itself for three full years as a platform that respects the rights of its users, despite having abruptly changed its ToS in 2009 in order to retroactively obtain extensive rights over its users’ content. This clause lay “dormant” for a long time, until in February it was revealed that Twitter was selling two years worth of archived tweets to a British data mining company. The evolution of ToS at times resembles a game of chess, where attacks are planned several moves ahead…

With regard to personal data, a new directive is currently being prepared to replace the current text which has been in force since 1995. That directive was recognised at its inception as one of the most protective in the world. But it has begun to reach the limits of its effectiveness in the face of unprecedented challenges such as cloud computing or the kind of data sharing Google is embarking on, having consolidated the terms and conditions for its various services.

Are other ToS possible?

In the move to protect personal data, the notion of “Privacy by Design” is mentioned more and more as a potential solution. That means taking privacy into account from the start, a principle which could be consecrated by the future European directive.

But this “Privacy by Design” could also arise from a service’s ToS, which then act as a kind of “genetic code”, shaping its operation with a sense of respect for the rights of users. This is the case, for example, with the alternative social network Diaspora. Their “Bill of Rights” is based on respect for the principles of honesty, transparency, predictability and control, placing respect for individual rights at the heart of the platform.

This example, which the infographic below underlines, demonstrates that other ToS are possible, either in terms of intelligibility or the balance of rights.

Some platforms use open licenses to ensure that content produced by users, if it can be reused, can not be exclusively appropriated. That’s the case with the alternative microblogging network identi.ca, which operates under a Creative Commons BY license, or the collaborative encyclopaedia Wikipedia, where the CC-BY-SA license serves as the ToS for the ownership of content. As nobody has ultimate ownership over the entire contents of Wikipedia, this form of non-ownership protects contributors against the risks of resale that may occur with other contributory platforms. However, the risk of excess is not absolutely ruled out, as evidenced by the recent partnership between Orange and Wikipedia.

The Tumblr network has distinguished itself with the effort it has devoted to translating its ToS into intelligible language, departing from the usual legal jargon and even injecting some humour. The clauses relating to ownership of content are clearly understandable and remarkably well balanced:

When you upload your creations to Tumblr, you grant us a license to make that content available in the ways you’d expect from using our services (for example, via your blog, RSS, the Tumblr Dashboard, etc..). We never want to do anything with your content that surprises you.

Something else worth noting: Countless Tumblr blogs have gone on to spawn books, films, albums, brands, and more. We’re thrilled to offer our support as a platform for our creators, and we’d never claim to be entitled to royalties or reimbursement for the success of what you’ve created. It’s your work, and we’re proud to be a part (however small) of what you accomplish.

This is very far, as the infographic shows, from the tortuous 47-page meanderings of Apple’s ToS, or the double-speak of Twitter’s. This type of approach might even offer a useful model for rethinking our understanding of ToS. In the same way that the Creative Commons licenses have changed the approach to copyright by translating contracts into terms comprehensible to ordinary human beings (“human readable“), one could imagine a similar effort to transcribe ToS in shorter, clearer principles.

Beyond working on the language, this approach could also include a graphic dimension, creating logos like those used for the Creative Commons to express terms of service in a manner understandable at a glance.

The Mozilla Foundation has proposed “Privacy Icons” that would make websites’ privacy policies clear to Internet users. This graphical approach, which aims to create a “Creative Commons for digital presence”, could prove to be much more effective than the charters or bills of rights found on some sites.

Towards a fair hybrid economy

Finally, the infographic shows we are still far from the emergence of a “fair hybrid economy”, the formula used by the lawyer Lawrence Lessig. With the term “hybrid”, Lessig is refering to the fact that social media have develpoed astride a traditional market economy and a contribution economy, where users generally make their content freely and voluntarily available (“User generated Content“). The issue for ToS is how to create a fair and balanced relationship between the rights handed over to the platform for it to be able to function and develop an economic model, and the rights that individuals need to keep to protect their fundamental interests.

The quest for a “fair hybrid economy” is without doubt one of the major challenges for the evolution of the web, and one for which there is currently no completely satisfactory solution. All avenues are worth exploring to achieve this result. Why not take a tour of the sites that have implemented a sort of anti-ToS, such as the burlesque Oyoyo or the poetic Babelio?

And on 4chan, there are no ToS, but Rules, just like Fight Club!

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Text: Lionel Maurel (Calimaq)

Infographic: Andrea Fradin & Marion Boucharlat

Design & Illustrations: Marion Boucharlat for OWNI /-)

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