Author: Woodrow Hartzog

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The Problems and Promise with Terms of Use as the Chaperone of the Social Web

electric_fenceThe New Republic recently published a piece by Jeffrey Rosen titled “The Delete Squad: Google, Twitter, Facebook, and the New Global Battle Over the Future of Free Speech.” In it, Rosen provides an interesting account of how the content policies of many major websites were developed and how influential those policies are for online expression.  The New York Times has a related article about the mounting pressures for Facebook to delete offensive material.

Both articles raise important questions about the proper role of massive information intermediaries with respect to content deletion, but they also hint at a related problem: Facebook and other large websites often have vague restrictions on user behavior in their terms of use that are so expansive as to cover most aspects of interaction on the social web. In essence, these agreements allow intermediaries to serve as a chaperone on the field trip that is our electronically-mediated social experience.

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Can We Rely on Privacy Policies?

With the recent case of Saffold v. Plain Dealer Publishing Co., involving a newspaper website that outed an anonymous commenter who was a judge, we invited Woodrow Hartzog to write a post about these issues.  Woodrow is the author of a terrific article about the enforceability of the privacy policies (via promissory estoppel) of online communities and social network websites, forthcoming in Temple Law Review. — DJS

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Virtually every website you visit has a privacy policy.  These policies are often incorporated into a website’s terms of use.  This attachment of contractual obligation to privacy policies has significant implications.  Like many standard-form contracts, these policies are often vague or practically unreadable, leaving most users with only a general sense of how their personal information will be treated.  Yet, privacy policies often begin with promissory language along the lines of “we are committed to protecting your privacy and handling any personal information we obtain from you with care and respect.”  Thus, the language in privacy policies raises a number of questions.  Are website promises to protect anonymity binding?  Can these promises create a reasonable expectation of privacy?

The recent spate of lawsuits addressing a website’s privacy policies and terms of use seems important beyond the First Amendment implications aptly addressed by others.  A few of these decisions seem to pop up every year.  Yet, inevitably, most of them provide only a cursory analysis of the effect of contracts on privacy.  As a result, it’s unsurprising that these decisions are often met with ambivalence or a general sense of irrelevance. Many commentators rightly observe that courts are reluctant to find actionable damages for adherents to online agreements when websites violate their own terms.

Yet a few of these lawsuits seem to buck the trend by focusing on a user’s reliance on representations of confidentiality by a website.  The recent decision in McVicker v. King, No. 09-cv-436 (W.D. Pa. March 3, 2010) is worth noting as an explicit finding that a privacy policy can create an expectation of privacy for users.

In this employment dispute, the plaintiff William McVicker subpoenaed Trib Total Media, publisher of the YourSouthHills.com, for information disclosing the identities of a number of users commenting pseudonymously on their website. The plaintiff argued that the identities of the users were needed to impeach the testimony of the defendants who fired him.

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