Time to Take the Internet to Court

Almost all of the user safety measures implemented by major online companies have been put in place out of the platform’s fear.  Fear of litigation, regulation, legislation – fear. Altruism has very rarely carried the day when it comes to discussions with platforms about user protection.  Companies have a history of refusing to act with an abundance of caution when it comes to user safety, or even act with concern for victim safety until something disastrous happens and they have no choice. This has been true of many industries over the years, but the internet industry has always maintained it was something different and worked from a higher moral standard for society.

For the bulk of the internet’s existence platforms have offered users a Terms of Service (ToS) or other policy outlining the standards of behavior for users, repercussions for violations of those standards and protections for user’s information.  Unfortunately, ToS are not usually considered legally binding and many companies have seen fit to ignore stated obligations or modify outlined policies in their ToS to eliminate any embarrassing or inconvenient clauses.

Are the ToS a legally binding commitment or not?  More than a few platform’s opinions cite that the ToS, for the majority of services, are not offered in exchange for money, goods or service, which is one of the main characteristics of a binding agreement. However, that logic ignores that most ToS allow platforms to sell or use the user’s data. This makes the users a form of money, service or a product.  It certainly ignores that fact that it is the users who enable the platforms exist and prosper.  Platforms may well maintain that they protect the user data, but without protecting the real people behind the data, the results will eventually go wrong.

Why haven’t ToS been tested in court?  It is a risky strategy. If the court finds in the company’s favor, ToS become meaningless and companies will have nothing legally compelling them to enforce their policies or respond to requests to do so. If the court decides against the companies…the burden of formulating and enforcing livable policies this late in the game would be daunting for any industry. Either way a court decision in ToS would have extensive impact regardless of which way the court goes. As it should. This is issue that has been left unresolved for far too long.

The solutions are not simple, but the first order of business is to establish, in court, by legislation or by mutual and binding agreement, that ToS and other similar user safety and assurance policies are considered legally binding. That failure for companies to enforce their stated policies and standards is the equivalent of a breach of warrantee. Until there is a time when internet users can have reasonable faith in a platform’s policies, and know they have recourse if the platforms fail to enforce their policies, then all the moderators, bots and artificial intelligence content watchdogs in the world cannot truly fix the problems of abuse, exploitation, hatred, propaganda and racism the world is subjected to daily.