Unilateral Changes to Online Terms: do they work?

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Consumers wonder what exactly has changed when they are confronted with a new set of online terms, in a cloud-based service, website terms or software license. We reviewed this issue in an earlier post, which looked at changes to online terms in the middle of the product lifecycle. Amendments are often introduced due to changes in the law or changes in product functionality.

Instagram amended its terms of use in early 2013. In Rodriguez v. Instagram , CGC-13-532875 (San Francisco Sup. Ct. Feb 28, 2014), a US court reviewed a complaint alleging that Instagram’s new terms consituted a breach of good faith and fair dealing. The court noted that: “The New Terms modified the original terms in three allegedly material respects:

  1. in the Original Terms, Instagram disclaimed any ownership rights in content users post on Instagram, whereas in the New Terms Instagram disclaimed ownership of content users post on Instagram;
  2. in the Original Terms, Instagram was afforded a non-exclusive limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce, and translate content users posted on Instagram, whereas under the New Terms Instagram has a transferable and sub-licensable license to use the content users post, with the two allegedly material aspects being (i) the addition of sublicensing authority; and (ii) removal of any limitations on the scope of the license; and
  3. the New Terms add a liability waiver.”

The New Terms were structured so that users accepted the terms by continuing to use Instagram after the effective date. A user could decline acceptance by ceasing all use of Instagram. The plaintiff in this case did continue use of Instagram after the New Terms were introduced. This opened up the argument for Instagram that this user consented to be bound by the New Terms. The lack of a click-through was not fatal to Instagram’s case. As a result, this decision seems like a bright spot for cloud service providers and software licensors - after all, it seems to permit unilateral amendment clauses in online terms without forcing users into a mandatory click-through screen. The court also seems to accept that the new terms can apply retroactively to user-generated content that pre-dates the New Terms. However, a note of caution should be sounded for cloud computing providers and software vendors:

  • unilateral amendments to online terms should always be handled carefully;
  • consider in advance whether amendments are permitted under the current terms before imposing new terms;
  • due to the facts of this particular plaintiff, the court did not address the question of what would be done with user content if the user had ceased use of the service - i.e. if the user had not impliedly consented by continued use;
  • consider how to log or track user consent (either active consent or implied “continued-use” consent) by users.

Topics:  Cloud-Based Services, Contract Drafting, Contract Formation

Published In: General Business Updates, Communications & Media Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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