We often espouse the value of comprehensive, up-to-date terms of service (TOS) that consistently reflect your current business. And for good reason! Plaintiffs’ attorneys will scrutinize your TOS before helping your users sue your business for “taking advantage” of them without their consent and knowledge. Wilford Raney’s attorneys did the same for Twitter’s TOS before bringing their class action lawsuit against the social media giant for allegedly invading Raney’s privacy (and the privacy of similarly situated individuals) by replacing user-provided hyperlinks with its own “t.co” short link in “private” direct messages.
According to the lawsuit, as an example, if a user sends a private direct message with a full web address (starting with “www.nytimes.com”) to a New York Times article to another user, Twitter’s computer system will read and modify the direct message by replacing the full web address with its own custom link such as “http:/t.co/CL2SKBxr1s” while still displaying the text “www.nytimes.com” to its users. Twitter allegedly benefits immensely from this automated link modification by showing New York Times and others that the source of the traffic comes from Twitter and, thus, the “end result is that Twitter can negotiate better advertising rates.”
In the complaint, Raney alleges that he and others similarly situated did not consent to such “eavesdropping” and that Twitter does not disclose to its users that it may intercept, read and alter the contents of its users’ private direct messages in the aforementioned manner. Raney refers to several sections of Twitter’s TOS and even states that he agreed to Twitter’s TOS—a clear indication that his attorneys reviewed and analyzed the TOS.
Two relevant paragraphs of Twitter’s TOS provide as follows (as of the date of this article):
You retain your rights to any Content you submit, post or display on or through the Services. By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.
Although the foregoing paragraphs of Twitter’s TOS do give notice to its users that they are giving Twitter the right to modify any submitted content, the TOS arguably limits those modifications to those “necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media.” While Twitter may argue otherwise or attack the lawsuit in other ways, it is likely that early dismissal of the lawsuit based on its TOS may have been possible had it been updated to more clearly disclose Twitter’s modification practices. This class action lawsuit again highlights the importance of having a carefully drafted TOS and regularly updating such terms to reflect your current business and any changes.