Hot Docs: Facebook’s terms of use are enforceable, even if you didn’t read them

April 12, 2012

Read before clickingAgreeing to “terms and conditions of use” seems like a necessity to use any of the services that a given company offers.

But how often does the average person really read them before consenting to them?

Most people probably believe that there’s little harm in ignoring this legalese and moving on with their lives.

Mustafa Fteja was likely one of those people, and, unfortunately for him, he was mistaken in that belief.

The terms of use that Fteja wasn’t fully aware of were those of none other than Facebook, and his being bound to those terms of use led to his lawsuit against Facebook being transferred from New York to California.

The lawsuit arose out of an incident on September 24, 2010 wherein Facebook disabled Fjeta’s account.

Despite Fjeta’s repeated attempts to contact Facebook, he couldn’t get a reason out of the company for why his account had been disabled.

This led Fjeta to surmise that Facebook “discriminated” against him “based on [his] religion and ethnicity,” specifically that he is a Muslim and his name is Mustafa, and so, naturally, he sued.

After some procedural back-and-forth between Fjeta and Facebook, Facebook moved to transfer the action to its home venue of the Northern District of California, per the forum selection clause in Facebook’s terms of use.

Of course, Fteja argues that “[t]here is no proof that [he] agreed to a forum selection clause” and that he does “not remember agreeing to [it] or agreeing to any Facebook agreement.”

Facebook countered that a Facebook user cannot become a Facebook user “unless and until they have clicked through the registration page where they acknowledge they have read and agreed to Facebook’s terms of use.”

Facebook is correct, obviously.

Hot Doc:  Fteja v. Facebook Inc.

Source: Thomson Reuters News & Insight – National Litigation

But that still leaves the court with the problem of figuring out what to do if a user never actually read the terms of use.

Fortunately for the court, it had a long line of cases relating to terms of use thanks to the numerous such disputes occurring throughout the history of the Internet.

In reviewing these cases, it found two predominant types of terms of use agreements employed on the Internet: “browsewrap” and “clickwrap” agreements.

Browsewrap agreements refer to situations where a website’s terms and conditions of use are posted on the website as a hyperlink, typically at the bottom of the page (the user is not forced to read or agree to them).

Clickwrap agreements most commonly consist of a pop up page of some kind that displays the product’s or service’s terms and conditions.

A clickwrap page then requires a user to affirmatively click a box acknowledging awareness of and agreement to these terms before he or she is allowed to proceed with further use of the product or service.

Without getting too much into the specifics, clickwraps are enforced much more often than browsewraps for the simple reason that it is not always clear that the user has read or agreed to a given browsewrap.

The court found that Facebook’s terms of use don’t really fit into either category, since they “do not contain any mechanism that forces the user to actually examine the terms before assenting.”

Using a quaint analogy about a roadside fruit stand, the court ended up finding Facebook’s terms enforceable since Fteja affirmatively agreed to the terms in clicking “Sign Up,” and such terms were available for him to review if he so chose.

Though the immediate consequence of the ruling is Fteja’s suit is headed out to California, given the pervasiveness both of Facebook and online terms and conditions of use agreements, there are broader implications.

Most prominently, the court specifically reinforced the notion that Facebook’s terms and conditions are enforceable in all but the most extraordinary of circumstances.