Written by Margaret Briffa | September 27, 2018
When we decided to join the Twitterati we signed up to their terms and conditions without paying much attention to them. We were aware that Twitter claimed rights in all content posted on its site but on balance the commercial advantage of joining the conversation outweighed the downside. If you are surprised that lawyers can be so quick to agree terms which are wholly unreasonable on their face – don’t be. Twitter terms, like those of other social media giants are not negotiable and so expending energy on them is a waste of time. Indeed so non negotiable are the terms that it has taken a court action by a French Consumer Association against Twitter in Paris for things to be looked into. The French Consumer Association acting for a number of its member users of twitter argued that the French Intellectual Property Code requires intellectual property clauses of this type to be very specific and the wide ranging effect of the provision as currently set out in Twitter’s terms contravened the Code.
Twitter struck back with the contention that ‘users’ of its service are not ‘consumers’ as the service is free and therefore the law did not apply to them. The court rejected this finding. The service was not in reality free as using the service entitled Twitter to use personal data and other information posted on its site. This was clearly of value to Twitter and consideration for the service offered. Having found that the court went on the say that that the clause by which Twitter granted itself the right to use, for free, any content generated by the user, including content which may be protected by authors’ rights, without specifying in enough detail the content concerned, the nature of the rights transferred and the nature of the commercial uses agreed upon, infringed the provisions of the Intellectual Property Code.
So what now?
Cleary absent an appeal to a higher authority Twitter will have to change it terms and conditions for users in France. But what of users in other countries? The fact that Twitter fought the action indicates that it considered it commercially important to capture these rights, so it is not a given that Twitter will now change its terms in all countries in which it operates so all users are signed up to the same regime. If that is the case it may encourage other national groups to take on Twitter. In the UK the Unfair Contract Terms Act which provides that contracts between business and consumer have to be fair may come to the rescue. Is there a business out there whose content is being unfairly exploited and whose commercial interests are being damaged by this clause. If so this may be the necessary catalyst for our own action against Twitter excesses in the UK.
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