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Do You Know What You’re Agreeing to Online?

Posted Dec 1, 2008 5:31 PM CST
By Molly McDonough

With the landmark trial of Lori Drew complete—she was acquitted of the more serious felonies but convicted of misdemeanor violations—terms of use issues still have legal experts all abuzz.

It's not that there's anything all that new about terms of use, except that they are everywhere that Internet users want to be. And violations abound with very little policing. At least that was the case before the unusual Drew cyberbullying case.

Drew was tried under the novel theory that she violated MySpace's terms of use when she, her daughter and Drew's former employee created a fake account, pretended to be a 16-year-old boy and harassed a neighbor girl. The girl, Megan Meier committed suicide after a heated exchange in 2006.

For the most part, legal experts interviewed for an article posted Sunday in the St. Louis Post-Dispatch concluded that terms of use agreements are fairly mundane.

But there are exceptions.

The Post-Dispatch noted some terms to watch:

• World of Warcraft players risk being banned from the game if they sell any of their virtual property for real money, which gives game owner, Blizzard Entertainment, the right to fight the increasingly troublesome issue of buying and selling of virtual game items.

• MySpace users agree not to post a photo of another person without the individual's consent.

• PayPal users agree to file any suits in Santa Clara, Calif., or Omaha, Neb.

Comments

1.

B. McLeod
Dec 1, 2008 7:12 PM CST

Verily, as with certain banks’ bizarre, boilerplate banking agreements, it is a good idea to read online terms.  Years ago, Earthlink acquired a smaller ISP competitor and sought to impose their online terms via a notice directing users to the site where the new terms were posted.  By “continuing to use” the access that had been purchased from the acquired ISP (and already paid for an unexpired period), users agreed (among other things) to resolve all disputes exclusively in a particular state (Georgia, I believe) and further agreed that Earthlink could unilaterally amend any aspect of the agreement by posting whatever changes it desired in its online terms, and that the Earthlink ISP agreement could only be cancelled by written notice sent by restricted mail.  I terminated them upon reading their asinine terms.  I think it is particularly unreasonable for any vendor to insist on the right to change the agreement at a whim, and have the changes (which could include unlimited price increases) bebinding on customers.  Whether or not Earthlink has since moderated its overreaching agreement terms, I will never do any further business with that company until the end of time.  I would more fully express my opinion of the company and its practices, except that I recognize as a dutiful and responsible moderator, you would then have to delete the post.

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2.

df
Dec 1, 2008 11:08 PM CST

As horrible as Lori Drew’s actions were—and I certainly wanted her convicted of something—criminalizing (even if “only” a misdemeanor) violations of access terms is seriously wrong (see a recent volokh.com post about this, humorously setting out policies like “no posts by anyone who’s visited Alaska ever, you post and you’re in violation”). Sometimes someone does something really wrong and there’s not a criminal law covering it, that’s unfortunate but bending the law to fit is worse. There are enough problems with contracts of adhesion in civil law, but that pales next to criminalizing violation of ISP terms.

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