Recently, Facebook, Instagram and Whatspp went off-line for nearly 6 hours. Globally. As a result of this extraordinary disruption, Facebook’s market value dropped $50 billion, Facebook founder Mark Zuckerberg’s paper fortune shrunk $7billion and more than $13million of advertising revenue was lost, each hour the platform was offline.
But Facebook and its founder were not the only ones economically affected by the outage. Of its 2.8 billion users, an estimated 200 million small business owners use Facebook to increase their online presence and respond to customer enquiries. These businesses suffered an interruption to their businesses for nearly six hours. In Nigeria, there are an estimated 29.64million users of Facebook currently, and nearly half of its population, who are more likely than not, involved in some entrepreneurial endeavour, fall within the 18 -35 demographic that use Facebook.
Do these users, businesses or otherwise, have legal redress from Facebook for any fallout of its interruption in service? In this article, we explore the possible liability of Facebook to its users based on the oft-ignored, Terms of Service.
The Terms of Service: Offer, Acceptance and Consideration
The Terms of Service is a legally binding contract between a digital platform and the user, which the user must agree to, to use or access a site’s service. When the user accepts the terms either by checking a box or impliedly using the site – the Terms and Conditions become a legally binding contract. Social media platforms in exchange for providing users with a platform for any digital-facing activity they desire, require users to give up some measure of their privacy by letting them track them, on the site – and sometimes on the internet, – through cookies and like technology. These data are used to improve their ad sales algorithms and better share advertised products and services to users, amongst others.
Facebook’s Terms and Services (FTOS) specifies the products and services they provide, the mode of acceptance and the consideration for access to their services. It introduces its FTOS as follows:
“We don’t charge you to use Facebook, or the other products and services covered by these Terms. Instead, businesses and organizations pay us to show you ads for their products and services. By using our Products, you agree that we can show you ads that we think will be relevant to you and your interests. We use your personal data to help determine which ads to show you.”
In Section 1 of the FTOS, it outlines and expatiates on 9 categories of service/products that it offers: a personalized experience; connection to people and organisations; empowerment to express yourself and communicate about what matters to you; help in discovering content, products, and services that may be of interest; combat harmful conduct and protect and support the Facebook community; use and develop advanced technologies to provide safe and functional services; research ways to make their services better; provide consistent and seamless experiences across the Facebook company products, and enable global access to our services.
Acceptance of the FTOS is implied. Section 2, captioned, “How our Services are funded” states,
“Instead of paying to use Facebook and the other products and services we offer, by using the Facebook Products covered by these Terms, you agree that we can show you ads that businesses and organizations pay us to promote on and off the Facebook Company Products. We use your personal data, such as information about your activity and interests, to show you ads that are more relevant to you.
Thus, in exchange for using the Facebook platform for business, non-profit or recreational purposes, you grant Facebook a license to collect and monetise your personal data. Depending on the extent of the permission granted, Facebook can collect your device location via GPS, Bluetooth, or Wi-Fi signals, the name of your mobile provider, Internet service provider and your language and time zone from all devices you have installed it on or access its services from, according to its data policy.
You also grant Facebook permission to utilize all content you provide on Facebook. Section 4(3) on the permissions granted highlights three categories of licenses that users provide to Facebook by using the platform: permission to use your name, profile picture, and information about your actions with ads and sponsored content; permission to use content you create and share; and permission to update software the user uses or downloads. In all cases, these rights can subsist up to 90 days after the user has deleted their Facebook account. Section 4(3)(1) explains:
“to provide our services we need you to give us some legal permissions (known as a ‘license’) to use this content. This is solely for the purposes of providing and improving our Products and services as described in Section 1 above. Specifically, when you share, post, or upload content that is covered by intellectual property rights on or in connection with our Products, you grant us a non-exclusive, transferable, sub-licensable, royalty-free, and worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content (consistent with your privacy and application settings).”
And all these data, content, permissions serve to contribute to Facebook’s ad revenue of nearly $30 million per quarter. In exchange of which users gain use of Facebook’s platform for their businesses, non-profit and or recreational endeavours.
Now, that we have established that a binding contract exists and the major terms of the contract, we will examine if there is any provision for redress as it relates to the outage that users experienced.
Is Facebook liable to its Users
Section 4(3) of FTOS responds with a “no”. It says,
“We work hard to provide the best Products we can and to specify clear guidelines for everyone who uses them. Our Products, however, are provided “as is,” and we make no guarantees that they always will be safe, secure, or error-free, or that they will function without disruptions, delays, or imperfections. To the extent permitted by law, we also DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. We cannot predict when issues might arise with our Products. Accordingly, our liability shall be limited to the fullest extent permitted by applicable law, and under no circumstance will we be liable to you for any lost profits, revenues, information, or data, or consequential, special, indirect, exemplary, punitive, or incidental damages arising out of or related to these Terms or the Facebook Products, even if we have been advised of the possibility of such damages”
Clearly, Facebook’s definition of “seamless and continuous service” was not intended to mean uninterrupted. However, it does say, “our liability shall be limited to the fullest extent permitted by applicable law”. And Section 4(4) on Dispute Resolution specifies that for “consumers”, the laws of the country in which they reside will apply to any claim, cause of action, or dispute that arises out of or relates to these Terms or the Facebook Products and said consumer may resolve their claim in any competent court in that country that has jurisdiction over the claim. In all other cases, you agree that the claim must be resolved exclusively in the U.S. District Court for the Northern District of California, or a state court located in San Mateo County.
Although, unlikely to be successful, this provision might provide wiggle room for claims to be entered in jurisdictions around the world, depending on the court’s attitude to omnibus disclaimers.