Given it was a study into people’s emotions, Facebook should have known better.
It has emerged that the site altered the news feeds of almost 700,000 of its users to see the effects of positive and negative posts.
In the end, the main emotional response to Facebook’s actions was one of anger. Users were dismayed it had manipulated the types of entries on their feeds without their knowledge.
The study, which was carried out over the course of one week in 2012, showed that posts by friends influence a user’s mood: the more positive the post, the happier the recipient.
But legal experts and privacy campaigners are far from happy at Facebook’s behaviour. Although the social network said there was ‘no unnecessary collection of people’s data’, it has been criticised for carrying out a mass experiment without informing its guinea pigs they were in one. Critics claim the way Facebook conducted the study is symptomatic of a wider disregard for people’s privacy online.
Facebook says those users whose feeds were changed effectively gave consent to be part of the research when they ticked the box at the end of the site’s terms and conditions as they signed up.
While the legality and ethics of the study are being debated, the case illustrates how we can be bound by T&Cs.
Terms of service, as they are also known, are a necessary contract between company and user, but they are coming under increasing fire from those who say they leave consumers in the lurch.
‘Terms and conditions are broken,’ said Hugo Roy, the head of Terms of Service; Didn’t Read (ToS;DR), an online community project which analyses the T&Cs of internet companies and rates them accordingly.
‘They are supposed to rely on consent from users, which is what the phrase, “I have read and agree to the terms and conditions” means. But this is a joke: we most often don’t read them. Thus, terms of service are often the subject of mockery.’
There is a knee-jerk – and often justified – reaction from consumers to blame their woes on the company in question, but shouldn’t we read the small print before ticking the tiny box that could sign our lives away to some internet giant? Ideally, yes. But the reality is that most of us would rather watch paint dry than read a full set of terms and conditions.
According to research published by investment company Skandia, only seven per cent of Britons read the T&Cs on the websites they use regularly. Earlier this year, a survey by consumer group Fairer Finance revealed that more than two thirds of us don’t read the terms of service on loans, credit cards and current accounts. When contracts for car insurance run into more than 30,000 words, it’s hard to blame consumers for skimming over the details.
In ToS;DR’s rating system for website terms of service, names such as Google, Apple and YouTube score particularly poorly.
‘Facebook also has broad and unfair terms of service,’ said Roy. ‘The recent controversy over their psychological experiment is just a tiny example of it.’
‘Some services require users to license their copyright in extremely broad ways. This allows them to use users’ content in ways outside the scope of the service for which content was submitted.’
Cullen Hoback, director of 2013 documentary, Terms and Conditions May Apply, believes these kinds of contracts are leading us down a dangerous road.
‘If you dig into these endless and intentionally complicated agreements, you’ll find the legal authority for the privacy nightmare we now find ourselves in,’ he said.
‘Make no mistake about it: there is no meaningful line between the NSA and the major internet companies that suck up your data.’
Hoback said companies such as Facebook, Google, Apple and Microsoft could all do better.
He added: ‘Since lawyers are writing these things to protect the interests of the company not the user, terms and conditions strip away rights like ownership, privacy and even the ability to sue.
‘I’m still blown away by the fact that a company can change their terms at any time. We don’t own our data, we can’t leave with our data, and so when a Facebook or a Google decides to further weaken their privacy by changing their policies, we’re ostensibly trapped.
‘Companies should give us ownership over our information. Companies make it sound like they have your best interests at heart. It’s bulls**t.’
In Britain, the recent demise of the Office of Fair Trading means there is no regulator to provide guidance on what kind of T&Cs clauses may be unfair, according to Julia Hornle, a professor in internet law at Queen Mary University of London.
‘The problem with terms and conditions is precisely that they are not negotiated and therefore only reflect the service provider’s interests, who tries to exclude liability as much as possible,’ she said. ‘The balance has tilted too far in favour of online service providers and consumers are not even aware of it.
‘No one ever reads terms and conditions. In the online world, the length of terms and conditions is almost unlimited, so that many T&Cs now have more words than a Shakespeare play.’
Writer Robert Glancy researched the subject for his recently published novel, Terms and Conditions, in which a lawyer with amnesia uses T&Cs in an effort to piece his life together.
He said the ‘complicated hieroglyphics of small print’ is baffling to almost everyone.
‘Only lawyers are fluent in it. It therefore seems unfair – possibly illegal – to force people to sign documents they can’t understand. It smacks of signing a forced confession in a foreign language.
‘T&Cs are rife with traps and pitfalls. From minor (do I actually own the iTunes songs I bought?) to major (does my insurance cover my fatal illness?).
‘When a surgeon sets out to explain an operation, he translates complicated medical jargon and procedures into simple layman’s language. Yet when lawyers set out to detail important contracts, they often make them virtually impossible to understand, or make them so long that the reader dies of boredom part way through reading them.’
Even the lawyers responsible for drawing up T&Cs have sympathy for consumers. Adam Taylor of Adlex Solicitors, which drafts terms and conditions for a range of companies trading online, said there was a legal requirement for the contracts to be written in ‘plain’ and ‘intelligible’ language. ‘They don’t have to be long,’ he added.
‘Traders need them to manage the legal basis on which they supply goods or services. Consumers need them so that, in theory, they understand the legal basis on which they are dealing with the trader.’
However, he admitted there is a public distrust of terms of service agreements. ‘We suspect that the person producing the small print is out to trap us in some way.’