The early days of the internet saw website terms of use that primarily aimed to minimize liability for platform providers. These terms often consisted of revocable licenses with disclaimers that promised little or nothing to users. However, the digital landscape is changing, and online platforms are revisiting these documents under pressure from global regulators. Their revamped terms of use now often highlight safety, security, and user benefits, giving assurances that were previously non-existent. Although these changes cater to user expectations, they introduce new liabilities that could potentially breach the protective shield of Section 230 of the Communications Decency Act.
A recent decision by the U.S. Court of Appeals for the Ninth Circuit in Doe v. Grindr clarified this liability landscape. The court examined Grindr’s terms, which suggested a “safe and secure environment.” The plaintiff argued that Grindr failed in this aspect, leading to harmful incidents orchestrated through the platform. However, the court found this promise too general to be enforceable, thus allowing Grindr to retain its Section 230 immunity.
By contrast, the same court ruled differently in Bride v. YOLO Techs Inc.. YOLO had proclaimed its intolerance for abusive content and assured users that it would reveal the identities of violators. When plaintiffs experienced harassment, they argued that YOLO failed its promised duty to act against offenders. The court held that YOLO’s assurances constituted a binding promise, making Section 230 an ineffective defense.
The juxtaposition of these decisions indicates that platforms must tread carefully when revamping their terms of use. Companies need to distinguish between aspirational statements and enforceable promises. Language modifications, such as incorporating conditional terms and emphasizing the intentfulness of policies, can better shield platforms from unforeseen liabilities. For instance, instead of bluntly asserting, “We will terminate accounts of those violating our guidelines,” providers might consider a more measured approach: “We may terminate accounts as deemed necessary.”
Essentially, achieving a balance in terms of use language can mitigate liability risks. Platforms that hedge their assurances with appropriate legal caveats preserve their Section 230 protections while still catering to user trust. Legal practitioners and developers alike should pay heed; words matter, and carefully crafted terms are pivotal in navigating both user expectations and legal obligations.
For a more insightful discussion on this topic, the original article is available on Bloomberg Law here.