Facebook’s TOS faux pas

The last week has been full of discussion, complaints and general outrage about Facebook’s new Terms of Service that seemed to say, in summary, that they owned any data you put on the site – even if you deleted it and canceled your account.

As Google have argued before, there are sound technical reasons related to data storage and backup strategies to argue why a company may need to reserve the legal right to retain the data for a lengthy period. In addition, Mark Zuckerberg, the founder and boss of Facebook, arged in his case that – because the purpose of Facebook is to share your data and information with your friends – then your friends had a right to keep the information you had shared with them, rather in the way that they get to keep an email from you even if you decide to delete your own copy of it.

It shows that good intentions and sound technical strategies can still be torpedoed by legal intervention, because in writing a formal contract encapsulating these fairly benign – or at least understandable – intentions, the lawyers end up writing a statement that reads bluntly as “your data is ours and we can do what we like with it.” So the headline message is: never let your lawyers take control of something that is primarily a marketing/consumer message, or you’ll suffer the backlash.

Facebook have today announced (see Media Guardian, TechCrunch and BBC coverage, as well as Zuckerburg’s own blog post) that they will revert to their old terms of service which should take the sting out of the growing row. It’s not the first time they’ve been forced to backtrack: almost two years ago, an application that would report back to your friends everything you bought online also provoked a vicious user backlash and a similar retreat.

So on a site that relies on user generated content, what’s the legal position of the site? If the site doesn’t ‘own’ the content, can it have a viable business model? But at the same time, if it moves to ‘own’ the user generated content, aren’t the users going to desert in droves and take their UGC with them? It is their content after all and it’s not unreasonable that they should take exception at the idea of someone trying to – let’s not mince words here – steal it from them.

A social media business is reliant almost exclusively on its user community. People join Facebook, MySpace or Twitter not for the features, but because their friends or people they want to link up with are on it. That’s especially true for Twitter, which has become a huge success despite the fact that it’s technically as primitive as it comes – but it doesn’t matter if that’s where the people you want to follow hang out.

If those people on Twitter (like Stephen Fry, Jonathan Ross, Tom Watson et al), Facebook or MySpace suddenly moved out and found somewhere else they preferred, then the original site would collapse with the startling suddeness of climate change onset. So you disturb your users with caution, because while users will put up with a lot without reacting, they can also suddenly stampede and leave you standing in the dust if you’re not careful.

[UPDATE 27 February 2009: How to turn a PR disaster into a win – by owning up and then throwing open the issue of writing new terms of servcie ot the user community. An impressive recovery from Facebook, who seem to have understood the importance of the membership to the success of the business and thereby co-opted them into the process. Bravo!]


  1. Joe

    the fact that Facebook change their TOS back so quickly is like an admission that they knew they were wrong

  2. andrewlewin

    Not necessarily ‘wrong’ so much as them being seriously misintrepreted (in their eyes) by members and the media, and the potential for serious damage to the brand if they didn’t act quickly.

    Whether they think the root reasons behind the TOS change are still correct or not is another matter …

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