Tracking the terms

10 June, 2009

One of the perceived advantages of cloud computing services is the ability of service providers to update and upgrade their software in a seamless manner, without having to install new software on customers’ systems.

Unfortunately – from the point of view of customers – the same can apply to service providers’ terms of business, particularly on consumer-facing services where no written contract is in place. Many major websites routinely alter their terms of business, privacy policy and other key policies, and it is often difficult for users to see what changes have been made since they signed up. This has led to controversy on a number of occasions, such as when Facebook was forced to withdraw changes it had introduced, after protests by users.

The Electronic Frontier Foundation (EFF) has now set up a new site, TOSBack.org, to track these changes in policy on a range of major websites, including Apple, Amazon, Facebook, eBay and Google. It’s somewhat US-centric, but a number of the terms and policies listed will be relevant to UK users.

UK businesses need to bear in mind that the technical ability to change their online terms is not necessarily matched by the legal ability to enforce those terms. Terms in consumer contracts allowing unilateral variations to the terms are likely to be invalid under the Unfair Terms in Consumer Contracts Regulations 1999 unless they are carefully drafted (see the OFT’s very helpful guidance on the Unfair Terms Regulations). Any change which adversely affects consumers’ rights is likely to be unenforceable, and may also give rise to harmful publicity, as experienced by Facebook.