The Flexibility of Click to Accept Terms: the Individual Consumer vs. the Enterprise

Every day we click away our rights to our favorite apps and social media platforms.  It happens again when you get that shiny new update to the most recent IOS or Android software.  There is a little blurb about what the software update fixes, but what else is buried in those pages and pages of words that we scroll past and accept?  We are all guilty of it, many lawyers included, because the truth is, we don’t have too much control over what we agree to. You have two options: scroll down and accept or be stuck in the past.  The world of technology is fast paced and an operating system that is a month old could leave you with poor call quality, missed emails or worse, question marks in place of the newly diversified emojis.  Your option is accept or be left.  So that leaves us with the lingering question: what are we agreeing to and are our private pictures, text messages, direct messages, and inbox protected?  The software updates aren’t the only form of technology that makes us question what we are signing. 

Every few months, there is a status message posted all over Facebook.  This post announces to the social media conglomerate that the user does not authorize Facebook to use any of its content in any manner.  The hopeless user dates and time stamps the post, making it look tremendously official, and in less than four hours, it goes viral.  We have all seen this post, some of us have laughed immediately, while others run to google to see if there is any validity to this post and then you have a large group who have re-posted the status message.  Well, let’s give this viral post some context.  Have you ever desperately wanted to get out of a lease you signed?  The once charming New York City five hundred square foot $3000.00 per month apartment in Chelsea that you share with a roommate just no longer looks appealing to you or your bank account.  Ok, so here’s how you get out of that lease, place a sticky note on your landlord’s door with the following verbiage:  Dear Landlord, from this day forward I hereby return my apartment to you and will no longer be paying rent.  Do you see how ridiculous and ineffective that is?

Reposting your “copyrights” on Facebook is the equivalent of your sticky note to your landlord.  The status message is like telling your mortgage company via email that you will no longer be bound by the terms of your mortgage.  It is comparable to taking your car back to the lot and telling the bank that holds your car note, you are going to Uber going forward.  Your post means nothing, and here is why: the day you signed up for Facebook, you clicked a little green button that read “Sign Up.”  By clicking that button, you agreed to their Terms and even certified that you read their Terms and Policies.  That click is no different from signing your well-practiced signature on any contract or lease.  That one click of your mouse binds you and a post cannot get you out of a contract. So, what exactly did you click and agree to?  You have agreed to let Facebook and anyone they are affiliated with, or any company or person that pays Facebook, to share any and everything that you post.  That’s it, in a nutshell. 

Individuals using their smartphones or social networks aren’t the only people who face click to accept terms.  These terms are often seen on an enterprise level as well.  For example, a national radio station might purchase a text message providing service so that their listeners can text in when the station is running certain contests.  Before the radio station can use the service, they will be asked to agree to terms referred to as “click-to-accept” or “shrink wrap.”  

As IT attorneys, we are tasked to negotiate our clients out of “click-to-accept” terms.  Vendors often push back and will tell the client that everyone using their service is bound to these same terms, but of course, when there are hundreds of thousands or millions of dollars at stake, no is just not an option.  Recently, our client was asked to accept the terms of a Vendors standard End User Licensing Agreement (“EULA”).  The EULA had several terms that, because of the nature of our clients business, could not be agreed to.  Initially, we sent the Vendor our standard terms that we use when dealing with the type of services that they offered.  The response was an immediate no, everyone likes to use their own paper negotiated by their attorneys, understandable.  Instead of redrafting the entire EULA, we reviewed the terms of their EULA, and the areas that we could not agree to.  Taking some of our standard terms, along with the language in their EULA, after several negotiations, we were able to enter into a letter agreement with the Vendor.  After successful negotiations, the client was not bound by the click to accept terms, or any shrink wrap terms that may have been contained in the service that was being purchased. 

So, what do you do if you’re not an enterprise with millions of dollars and amazing attorneys to negotiate your rights? How do you protect your content or what you are clicking to accept?  Here is the secret: If you don’t agree with the terms, don’t use the service and if you want to keep it private, don’t post it!