Re-designing & re-modeling Social Network terms, policies, community guidelines and charters: Towards a user-centric approach

1 apr 2014 /

Java Printing-page-001(1)The provision of information has been regarded as a key tool in helping users make informed decisions. However, research has demonstrated that users are confronted with several constraints when it comes to assessing and processing information correctly. The fact that Terms of Use (in SNS) are not read nor fully understood by users can be partly explained by these constraints. It is clear that simply providing information to users is not enough. Several elements have to be taken into account.

First, users of SNS are not a homogenous group, but rather a very heterogeneous audience. At the moment, information is drafted with a single, standard user in mind. However, we know that different users process and make sense of information differently, therefore, alternative ways of presenting information, including visualisation and information design may be avenues worthwhile exploring. A tool that is suggested is ‘smart disclosure’, using big data to provide users with personalised information. For instance, some SNS users may value privacy less and attach more value to the protection of their intellectual property, such as photos and videos. A personalised approach may provide these users with more information on their intellectual property rights and less about privacy. However, it is necessary to explore how this exactly would work in practice and which legal implications this could have for providers as well as users.

Second, Terms of Use are intended for users, but seem to be drafted for lawyers. In order to enhance trust of users  but also to help users make really informed decisions, empirical research on how actual users of SNS deal with the different legal documents on a SNS could help to design more user-friendly texts.

Third, at the moment, information is generally provided before concluding the agreement. However, research has demonstrated that individuals have a fallible memory when it comes to remembering information about complex and unfamiliar subjects such as informed consent and liability issues. Therefore, information should not only provided when the user registers for a SNS, but also when relevant, for instance, when uploading a photo, the user can be informed about his intellectual property rights and the audience that will be able to see the photo. However, at the same time, users may find these features, designed to protect them, a hindrance. It is necessary to research how these kind of elements can be incorporated without being experienced as uncomfortable by users. Incorporating visual techniques and avoiding complex legal writing requires a different attitude from lawyers. However, these techniques can have an impact on the cost of a company. Now most Terms of Use and similar documents have a more or less uniform look and lawyers use standard terms. To change this will not only be costly in terms of money but also in time and effort. Therefore it is necessary to provide strong incentives for SNS providers to invest in user-friendly Terms of Use.

In summary, we believe that it is necessary to start focusing on users/consumers′ needs, expectations and values in order to develop visualisation tools that can help make law (more) meaningful to users/consumers by giving them a better insight into their rights and obligations and by guiding them in making truly informed decisions regarding their online choices and behaviour.

In addition, there is the option of re-modelling Terms of Use and other documents by introducing pre-approved or negotiated contracts. These options may really incorporate users’ interests by introducing consumer organisations in the contract making process. However at the moment, only Israel only incorporates a really pre-approval mechanism and it only has limited success. A possible reason may be the free riding problem what may have the result that companies will be reluctant to make the effort and the costs of letting their contracts be approved by an independent third party. In principle, companies can transfer these extra costs to its consumer, however, since SNS are offered on a free basis, we may wonder how this extra cost would be calculated. Because it involves both representatives of business and consumer organisations, negotiated contracts have the potential to result in agreements that attain a better balance between these parties’ interests. Our previous analysis of several provisions Terms of Use of SNS providers has shown that there is cause to be concerned about the imbalance between the SNS provider and its users.[1] It is likely that certain clauses will not be upheld before European courts, based on consumer protection arguments. For this reason, it is not only important to re-design legal documents and make users aware, but also to re-model these documents in order to restore the balance between SNS providers and their users. However, as in the case of pre-approved contracts, there is a risk of free riding. As certain SNS providers enjoy a dominant position, an additional question relates to the kind of incentives that are needed to encourage the adoption of more user-friendly terms. Furthermore there is the possibility that consumers, once aware of the existence of these negotiated contracts, will never read Terms of Use again because they think they are signing a user-friendly agreement. When not all companies in a certain sector adhere the negotiated contract, and users assume they are part of this negotiated agreement, they do risk ending up with a bad contract. This implies that awareness raising of users remains an important issue. The use of pre-approved and negotiated contracts may be criticised because they do not give users an opportunity to shop around for better terms. An alternative may be the use of interactive contracts which allow for a certain amount of customisation. These contracts may also be the subject of pre-approved or negotiated contract whereby both the default terms and the modular terms can be discussed. This will allow for Terms of Use that are balanced in the default as well as in the customised setting. However, in order to decide which system may be desirable and feasible in a SNS environment, more social science and legal research is necessary as well as a thorough and realistic cost-benefit analysis of the various systems.

Despite the promising character of these models, SNS have inherent characteristics that may complicate the actual implementation. The most important feature in this context is the fact that SNS experience network effects, implying that it is likely that users will stay with the SNS where all their friends are. Even if this SNS does not offer user-friendly terms, it is likely that users will not switch to the SNS that is more user-friendly. A combination of data portability and awareness raising may help to provide users with incentives to switch. Data portability is the right to transfer (personal) data from one SNS provider to and into another, without being prevented from doing so by the original SNS provider. This right to data portability is inserted in the proposal for a new Data EU Protection framework and it remains to be seen whether this principle will be upheld or not when the review is finalised.[2]

You can download the report here.



[1] Wauters, Ellen, Lievens, Eva and Valcke, Peggy, “D1.2.4: A legal analysis of Terms of Use of Social Networking Sites, including a practical legal guide for users: ‘Rights & obligations in a social media environment’”, EMSOC Project, 2013, available on www.emsoc.be.

[2] Commission, Proposal COM(2012) 11 final for a Regulation of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), 2012, available at http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf.