Are Your Website Terms of Service & Privacy Policies Enforceable? Turns out not as much as you might think.

In late January, the N.D. of California (Chen J.) rendered a decision that may have wide impact on the enforceability of Website Terms of Service across the Internet and Metaverse.  Does this sound the death knell for “informed” click-through consent to either terms of use or data privacy policies?

It very well may….and a close review of your terms of service language and enforceable informed consent by the user is required to avoid the pitfalls that Meta Platforms, Inc. (“Meta”) literally brought upon themselves.

Meta brought a suit against Bright Data Ltd. (“Bright Data”) for breach of its Terms of Use.  Bright Data is an Israeli company that gathers information by “scraping” the web for Fortune 500 companies and other clients.    Judge Chen of the N.D. of Cal., found in favor Bright Data on cross motions for Summary Judgment testing the enforceability of Meta’s Terms of Service.

Judge Chen found that the Terms of Service did not apply to web-scraping activities conducted by Bright Data when Bright Data was not logged in.  Bright Data had FaceBook and Instagram accounts – but they were not bound by the Terms of Service unless they were using their Meta accounts to conduct web-scraping.  Meta was able to produce no such evidence.  Judge Chen did find that the survival clause of the Terms of Service such as choice of law and jurisdiction applied to non-logged-in users but otherwise sounded the death knell for Meta’s enforceable Terms of Service in their current form.

Judge Chen was skeptical about the placement and availability of the Terms of Service on Facebook and Instagram as well.  Although only dicta, these comments may also spurn new litigation on the enforceability of consent.  Informed Consent is a hot-button topic.  This decision, while still appealable – needs to be carefully considered and dissected to determine its effect on every company’s website policy and the user’s manifestation of consent.  For convenience this decision is attached.

Pastore, LLC stands ready to help companies review and adapt to the latest theories and developments in website governance and privacy polies.  Website Terms of Service and Privacy Policies need to be an ever-evolving collection of guidelines and control mechanisms and Pastore, LLC is a leading creative innovator and can assist you in a top to bottom review of your forward-facing websi