Social Networking and Government Legal Issues
Overview • Standard Contract Terms of Social Networking Sites • Government Content on a Third-Party Site • Competitive Procurement Issues • First Amendment Issues
Standard Contract Terms • Pages of fine print • Dense legal jargon • No ability to negotiate Should we care what the terms and conditions say??
Standard Contract Terms (cont.) • Courts call these Contracts of Adhesion • Contracts of Adhesion are potentially enforceable, BUT . . . • Courts are less inclined to enforce a particular term, if: • The term is unreasonable (party would not have agreed if it knew the term was part of the agreement) • There was little or no opportunity to negotiate the term • Imbalance in the sophistication of the parties • The term was obscured in the fine print.
Terms to Think About • Royalty Free License: Facebook: “. . . You grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content you post . . . This IP license ends when you delete your IP content or your account (except to the extent your content has been shared with others).” • Think before you post.
Terms to Think About (cont.) • Limitation of Liability Provisions • Waive all known and unknown claims – enforceable? • No liability for lost profits or other “consequential damages” • Limit on damages: (E.g., Facebook - $100 or amount paid to Facebook in the last 12 months) • Does your local law allow you to agree to these provisions?
Terms to Think About (cont.) • Indemnity: Facebook – “ If anyone brings a claims against us related to your actions or your content on Facebook, you will indemnify or hold us harmless from and against any and all damages . . . of any kind . . .” • Dispute resolution via arbitration or court? • Which arbitrator? Location of court (venue)? • Which law applies?
Gov’t Content on 3d-Party Sites • Government has less control over third-party sites than its own site. • Some users of the government’s page may not appreciate that your city does not control everything on the site.
Procurement Issues • Is use of free service considered a gift? Need authority to accept? • Does local law require some sort of competitive process to choose which site(s) to use? • Not spending government money • Conferring a benefit on site(s) you choose?
Public Forum Issues • Issue: Should governments allow users to post comments on social websites? • Before moving ahead, consider the First Amendment: Government “shall make no law . . . abridging the freedom of speech” • Questions arise if the government wants to restrict comments.
Public Forum Issues (cont.) • Public Forum line of cases • If government creates a public forum, any restrictions on speech must serve a “compelling state interest” • If government creates only a limited public forum, restrictions on speech must be reasonable, provided that they are viewpoint neutral • How to create a limited public forum • One good way: Have a policy showing intent to limit access (e.g., participate only with permission, limited subject matter), and stick to the policy
Public Forum Issues (cont.) • 3rd-Party sites are different from sites a government controls • Sites typically moderate the comments based on site policies (e.g., Facebook – “you will not bully, intimidate or harass any user”) • Question: Do sites allow page “owners” also to moderate comments? • If the government does not restrict comments (relies on site to moderate), then probably no First Amendment issue