Legal Issues

OverviewStandard Contract Terms of Social

Networking SitesGovernment Content on a Third-Party SiteCompetitive Procurement IssuesFirst Amendment Issues

Standard Contract TermsPages of fine printDense legal jargonNo ability to negotiate

Should we care what the terms and conditions say??

Standard Contract Terms (cont.)Courts call these Contracts of AdhesionContracts of Adhesion are potentially enforceable,

BUT . . .Courts are less inclined to enforce a particular

term, if:The term is unreasonable (party would not have

agreed if it knew the term was part of the agreement)There was little or no opportunity to negotiate the

termImbalance in the sophistication of the partiesThe term was obscured in the fine print.

Terms to Think AboutRoyalty Free License:

Facebook: “. . . You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content you post . . . This IP license ends when you delete your IP content or your account (except to the extent your content has been shared with others).”

Think before you post.

Terms to Think About (cont.)Limitation of Liability Provisions

Waive all known and unknown claims – enforceable?

No liability for lost profits or other “consequential damages”

Limit on damages: (E.g., Facebook - $100 or amount paid to Facebook in the last 12 months)

Does your local law allow you to agree to these provisions?

Terms to Think About (cont.)Indemnity: Facebook – “ If anyone brings a

claims against us related to your actions or your content on Facebook, you will indemnify or hold us harmless from and against any and all damages . . . of any kind . . .”

Dispute resolution via arbitration or court?Which arbitrator? Location of court (venue)?Which law applies?

Terms to Think About (cont.)Changes to Terms and Conditions:

Facebook 9/08: “We reserve the right, at our sole discretion, to change, modify, add, or delete portions of these Terms of Use at any time without further notice. . . Your continued use of the . . . Site after any such changes constitutes your acceptance of the new Terms of Use”

Facebook 5/09: “We can change this Statement so long as we provide you notice through Facebook . . . and an opportunity to comment. . . . We can make changes for administrative or legal reasons upon notice but without opportunity to comment.”

Gov’t Content on 3d-Party SitesGovernment has less control over third-party

sites than its own site.Some users of the government’s page may

not appreciate that your city does not control everything on the site.

Gov’t content on 3d Party Sites(cont.)

Example: Advertising next to a city’s page, such as a political campaign or causeWill some people infer city endorsement? Any

different from ads in a newspaper or magazine?Will sites negotiate limits on advertising next to

City pages?Example: Privacy Policy of the social

networking site may differ from your city’s preferred policyConsider a disclaimer making clear that the 3d

party site’s privacy policy applies

Procurement IssuesIs use of free service considered a gift? Need

authority to accept?

Does local law require some sort of competitive process to choose which site(s) to use?Not spending government moneyConferring a benefit on site(s) you choose?

Public Forum IssuesIssue: Should governments allow users to

post comments on social websites? Before moving ahead, consider the First

Amendment: Government “shall make no law . . . abridging the freedom of speech”

Questions arise if the government wants to restrict comments.

Public Forum Issues (cont.)Public Forum line of cases

If government creates a public forum, any restrictions on speech must serve a “compelling state interest”

If government creates only a limited public forum, restrictions on speech must be reasonable, provided that they are viewpoint neutral

How to create a limited public forumOne good way: Have a policy showing intent to

limit access (e.g., participate only with permission, limited subject matter), and stick to the policy

Public Forum Issues (cont.)3rd-Party sites are different from sites a

government controlsSites typically moderate the comments based

on site policies (e.g., Facebook – “you will not bully, intimidate or harass any user”)

Question: Do sites allow page “owners” also to moderate comments?

If the government does not restrict comments (relies on site to moderate), then probably no First Amendment issue