With last weeks events, many companies are now updating their Terms of Service (ToS). After reading one of the company’s ToS that we work with, my daughter and I became very concerned about the new language.
Witnessing the rampant political discrimination by companies that have blocked, removed, or banned users of their services for opposing their world or political views, I am very concerned about the unprecedented power to censor and destroy companies, organizations, and governments that do not submit to the will of the Tech Giants.
In order to safeguard our company from cancel culture and political discrimination attacks, we are now searching for a new server, as the one we had chosen has proven that they will participate in political discrimination.
The following is an email that has been sent to one company for clarification on their ToS. We are currently reviewing other company ToSs and preparing to send similar request for clarification.
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Dear (company) Team,
Today upon reading the update to your ToS, I found myself and a number of my colleagues incredibly concerned by the dangerously ambiguous language in your new clauses. With no other alternatives to the services (company) provides, we therefor ask for clarification on the subject matter.
To address this matter, I have composed a list of of my concerns, the specific lines and sections they pertain to, and questions on how these sections are applied and how my concerns can be rectified and fears of continued use of your services allayed.
The sections in question and concerns pertaining to them are as follows:
( 1 ). Section 2:A – HARMFUL OR PROHIBITED ACTS.— “infliction of harm to (company) reputation;”
Questions:
1. What constitutes “infliction of harm to (company) reputation”? Does it mean direct infliction of harm such as bad reviews, advertising/acting/speaking against (company), or actively besmirching (company) reputation via posts/videos/content? Or does it include indirect infliction of harm such as being harmful by association (IE a client’s reputation, not content, becoming damaging to (company) reputation)?
2. If this clause does in fact, include indirect or unintentional infliction of harm, are your users at risk of having their accounts closed due to “indirect harm” or “harm by association”? IE: will the client have their account closed if they become embroiled in a controversy that might aversely affect (company) reputation by the “association” of having that person as a client?
3. Will efforts of online 3’rd parties (via Cancel culture/call-out culture and through no fault of my own) be used as grounds for (company) to terminate my account as a (company) client? Will the efforts of online 3’rd parties also be used as grounds to terminate other (company) clients? Am I safe from petitions of termination by 3’rd party entities (who may or may not also be competition in my business field)?
Main Concern: Considering the current climate of the US, both online and offline, will any private, personal affiliation of mine with any political, social, or religious 3’rd party person, people, entities, groups, or organizations (who function legally and abide US law) on any 3’rd party site or platform affect my membership or be used as grounds to terminate my membership? If so, will I be terminated as a client for those affiliations? If other parties find my use of (company) disagreeable, will I be terminated as a client if they make it a point to target me (for content or personal opinions that are legal yet disagreeable to them, such as those possibly expressed on Twitter or Facebook) in such a way as to make my association with you as a client harmful to (company) reputation?
IE: Will a user’s account be terminated if they become the target of the trend of cancel culture/call-out culture, boycotting, dog piling, demonizing, or harassment over publicly shared views that are legally protected under the 1’st Amendment to the US Constitution, but differ from or go against those of the community at large? Will such 3’rd party actions become grounds for termination due to indirect and unintentional “harm by association” to (company) reputation? Will my account be terminated because someone doesn’t like me or someone/something I’m affiliated with, and decided to make it known through these tactics?
( 2 ). Section 2:C OFFENSIVE COMMUNICATIONS — “Any communication sent, posted, or authorized by you, including without limitation postings on any website operated by you, or social media or blog…”
Questions:
1. When referring to “any website operated by you, or social media or blog”, does that encompass all of a client’s digital presence (Their site(s) and accounts on Facebook, Twitter, Tumblr, Youtube, LinkedIn, Pintrest, Etc.)? 1A.The initial wording of this clause is vague and ambiguous but it suggests that (company) clients must adhere to (company) ToS on any and all accounts they may have on 3’rd party sites and platforms, regardless of their connection to (company) or lack there of, including all online or social media platforms that exist or may exist in the future. Is this understanding correct?
2. When referring to “postings” or “Any communication sent, posted, or authorized by you”, what all is included in this clause? Is it referring to posts/content made by you(sent/posted), posts/content shared by you(posted/authorized), or posts/content liked by you(authorized) as sites like twitter do share “likes” on one’s followers’ timelines)?
3. Will you be monitoring 3’rd party accounts (blog, social media, etc.) linked to or owned by your users/clients to ensure they follow your ToS? Is your ToS to be followed regardless of what platform they are on so long as they are a client of (company)?
4. Is it legal/ethical to base one’s membership to (company) on content that is neither hosted nor connected to (company) except by association through the client/user themselves? Is this an ethical way to put forth your influence in the behaviors of your clients?
Main Concern: Am I, as a (company) Client, now bound to (company) ToS wherever my digital presence may be (blog, social media, other 3’rd party sites), regardless of if my use of your services for my site and products adhere perfectly to your ToS? Will my previous twitter and personal FB posts now be possibly utilized as grounds to close my account and shut down my website and business? Will my use of and membership to (company) be used as leverage against my 1’st amendment rights of Free Speech?
( 3 ). Section 2:C OFFENSIVE COMMUNICATIONS — “… offensive, … hateful, threatening, harmful, inciting, … harassing, or discriminatory; misleading, false, or misinforming;…”
Questions:
1. What is (company) definition and criteria of these terms?
2. What constitutes as something that is “Offensive”, “Hateful”, “Threatening”, “Harmful”, “Inciting”, “Harassing”, “discriminatory”, “misleading,” “false”, and “misinforming”?
3. What are the criteria for something to fall under those categories and how are the criteria determined?
4. Due to the ambiguous nature of the words above, it must be noted that outside of “threatening” (in which one makes Direct Threats toward another person), all of the terms listed above are subject to the interpretation of the reader, or in this case the Staff of (company). With this in mind, What are (company)’s interpretation of these words?
5. How will the interpretation of these words be determined?
6. How will the terms and/or the interpretation(s) of these terms be applied to content produced on any or all 3’rd party platform accounts of (company) users/clients?
7. Who will be interpreting these terms and deciding whether or not they apply to specific users/posts/content?
8. Will (company) interpretation of the labels/categories above be swayed/influenced by interested 3’rd parties?
9. Will (company) definition and interpretation of the labels/categories above be applied equally to all users/clients regardless of money, prominence, or political/social affiliation?
10. Will (company) hold liable an account holder who’s content has been falsely claimed/labeled as “Offensive”, “Hateful”, “Threatening”, “Harmful”, “Inciting”, “Harassing”, “discriminatory”, “misleading,” “false”, and “misinforming”?
11. How will (company) determine if a claim is true or false and manage said claims?
Main Concern: Over the last year, the use, understanding, and application of the words “Offensive”, “Hateful”, “Threatening”, “Harmful”, “Inciting”, “Harassing”, “discriminatory”, “misleading,” “false”, and “misinforming” have been constantly changed, misused, and/or applied wrongly or unequally to people, posts, and content affiliated with one social/political faction or another across all platforms (most notably Twitter, Facebook, and Youtube). With this in mind, will (company) do the same to avoid conflict with these larger companies? Or will (company) apply the same standard equally to all users/clients regardless of personal online or offline affiliation? Will I be treated fairly as any other customer, regardless of my social, political, religious, or other affiliations? Or will I need to remove myself from the public square and eliminate my digital presence to avoid any possible discourse that might come my way to avoid risking my (company) membership?
As a (company) client and a concerned citizen in the current US social, political, and financial climate, I hope you can understand my fears and concerns regarding your recent update to your ToS and the future of my business with (company). I look forward to your reply with your answers, clarification, and help on how to navigate this matter and the subsequent matters brought into play with your updated ToS.
Best and sincerest regards,
Tara Nebeker
VARWEE site and funnel designer