Worrisome Features of the Terms of Use at "Social Networking Sites"

by Paul Alan Levy

Late last week I attended a conference on Social Media Liability at Suffolk University Law School. My own talk, about practical considerations in litigating online free speech issues, is not yet in publishable form, but a fascinating empirical study of the terms of use of several hundred "social networking sites" was presented. I found the definition of the universe being sampled a bit odd, and some of the authors' oral presentation a bit fuzzy, but the study itself was fascinating.

An excerpt from the SSRN abstract:

This Article employs a content and statistical analysis of 329 terms of use (TOU) of social networking sites (SNS) to report findings from this first empirical study of these online “contracts.” Social media terms of use present two primary challenges to the law of contracts; first, they are excessively one-sided in favor of the SNS and second, the key clauses are well beyond the reading comprehension level of the average social media user. Part I provides a systematic overview of the characteristics of our sample of the world’s largest social network providers, a diverse group of websites that are headquartered in forty different countries on four continents. Part II assesses the overall readability of these social networks’ TOU, finding that they are written at an average reading level of grade 11.7, significantly above the eighth to ninth grade reading level of the typical U.S. high school graduate. More importantly, the minimum reading level required to comprehend what we call the rights-foreclosure clauses — the mandatory arbitration, limitation of liability, and disclaimer of warranty provisions — is much higher. Social network providers draft rights-foreclosure clauses slightly below the reading level of the average college graduate, grade 15.5.