Social Networking Sites' Terms of Use: Addressing Imbalances in the User-Provider Relationship through Ex Ante and Ex Post Mechanisms

Author:Ellen Wauters, Eva Lievens & Peggy Valcke
Pages:139-151
 
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Social Networking Sites’ Terms of Use
2014
139
2
Social Networking Sites’ Terms of Use
Addressing Imbalances in the User-Provider Relationship
through Ex Ante and Ex Post Mechanisms*
by Ellen Wauters, Eva Lievens & Peggy Valcke, Interdisciplinary Centre for Law & ICT (ICRI) – KU Leuven – iMinds
© 2014 Ellen Wauters, Eva Lievens & Pegg y Valcke
Everybody may disseminate this ar ticle by electroni c means and make it available for downlo ad under the terms and
conditions of the Digita l Peer Publishing Licence (DPPL). A copy of the license text may be obtaine d at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8 .
Recommended citation: Ellen Wauter s, Eva Lievens & Peggy Valcke, S ocial Networking Si tes’ Terms of Use: Addressing
Imbalances in the User-Provider Relationship thro ugh Ex Ante and Ex Post Mechanisms 5 (2014) JIPITEC 139, para 1.
A. Introduction
1
Legislative instruments that impose information
obligations on market actors when offering products
and services or closing transactions with users
currently exist at various levels and in different
sectors. The idea underpinning these legal obligations
is that informed users or consumers will make the
right choices, and by doing so, will serve not only
their own personal interests, but also promote wider
public policy objectives (healthy food, green energy,
safe investments, privacy-friendly information
services, etc.). However, the idea of an informed
user does not take into account the heterogeneity of
the users nor individual preferences or behavioural
   
of Use (ToU) of a Social Network Site (SNS), which
are meant to inform the user about the rights and
responsibilities that membership of such a network
entails. Research suggests that these ToU are rarely
read by users before agreeing to them. Also, even
if users were to actually read the ToU, they would
probably not be able to correctly assess the possible
implications of these documents. Despite their legal
duty to draft contract terms in plain and intelligible
language, or obtain “informed” consent for the
processing of personal data, market actors continue
publishing highly unattractive and complex terms
of service or privacy policies which rarely take
into consideration the various needs and rights of
different types of users.
2
Aside from issues regarding the lack of awareness
and understanding of ToU, an analysis of several
provisions of ToU of SNS has shown that there is
cause to be concerned about the imbalance of rights
and responsibilities between the SNS provider and
its users.1 It is likely that certain clauses (e.g. with
regard to the transfer of copyright or exemption of
liability) will not be upheld before European courts,
based on consumer protection arguments (e.g.
because they “ 
parties’ rights and obligations arising under the contract,
to the detriment of the consumer”; Article 3 of the Unfair
Terms Directive).
3
On the basis of contract or consumer rights
legislation, users may challenge an SNS provider
in court when they feel that their rights are
being violated. However, a single user will often
not be inclined to start a procedure because such
procedures are time-consuming and expensive.
Also, consumer claims often have a small value in
comparison to the resources of the companies that
they want to bring to court. Hence, the imbalance
between the effort and cost and the result will often
discourage consumers from starting judicial action.
It is therefore the aim of this paper to assess how this
situation can be remedied. We will examine whether
an ex post remedy such as the use of collective redress
mechanisms may provide a solution for consumers
or users who want to act upon certain consequences
of the imbalanced ToU of SNS providers. Next to this
judicial option, we will assesses whether we can
consider a new manner of establishing standard

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