Contract law and the web - How enforceable are Webmaster guidelines?

Disclaimer: What follows does not constitute legal advice. I am not a licensed attorney nor engaged in work related to the practice of law in any capacity. This post asks questions and does not imply or suggest specific answers.

The body of Internet case law is growing and there are now Web sites which are devoted to tracking changes in statutory and case law involving technology and the Internet. Every once in a while I find something interesting in the evolution of American law and its relationship to the Internet. Reading court decisions, statutes, and the commentary about them on the Web can be both wearying and challenging. It makes you wonder.

For example, have you ever heard of Greer versus 1-800-Flowers? I had not until today. Nonetheless, a court’s dismissal of an action filed by a disgruntled customer may prove to be a landmark decision since it set the legal precedent of allowing Privacy Policy and Terms of Service agreements posted on Web sites to constitute binding agreements with respect to phone calls.

In this particular case, the plaintiff/customer sued 1-800-Flowers in his preferred jurisdiction. 1-800-Flowers moved to dismiss the suit claiming that its TOS and PP were interlinked, that the customer had been referred to them while talking with their service on the phone, and that as soon as he visited the Web site he became subject to the jurisdiction clause posted there — that is, he had to sue them in their jurisdiction. The U.S. District Court agreed and dismissed the action.

See this post for how that case strengthens Web site terms of service under contract law.

However, before you start rewriting your terms of service to favor yourself in all legal capacities possible, you should check out this case where a court ruled against terms of service. A telephone company changed its terms of service on its Web site to stipulate that arbitration was a customer’s only means of resolving issues. A subsequent acquisition brought that company into conflict with a customer who didn’t want their service. He sued them in California and they replied with the claim that he was supposed to seek arbitration. The court ruled against the company because it had not altered the terms of service with the customers’ consent.

If you boil these two decisions down to their barest implications, you have an unresolved conflict: on the one hand, your terms of service may constitute a binding contract with anyone who visits your Web site (your TOS must stipulate this, I’m pretty sure). On the other hand, you cannot arbitrarily change your terms of service without informed consent from your contractual partners.

So, a simple-minded person could argue that if you visit a Web site you are bound by that Web site’s terms of service for as long as you are actively engaged with that site or the service the site represents (even in an offline capacity). A reasonable person, I think, might conclude pretty much the same thing with one reservation.

In other words, the reasonable person must — I think — concede that if service is not continuous, that it only exists during the visit to the site, then the terms of service only apply for as long as the site is being used. However, if service is not continuous and ongoing, then no contractual relationship exists between the Website publisher and the consumer; hence, changes to terms of service between non-continuous episodes of service should be enforceable.

If you’re selling flowers or toys on the Internet that should be fairly straight-forward. You have a very narrow window of exposure for consumer confusion (should you change your posted terms of service while customers are engaged in contractual activity as your new file goes live). I would imagine a lot of server logs would have to be obtained in order to prove that a merchant changed its posted terms of service during a transaction.

On the other hand, what if you’re providing an off-site service on a continual basis in which no money changes hands? How enforcemeable are your terms of service? For example, let’s say you provide a service that indexes information provided by other Web sites. In your terms of service you include some ambiguous language that forbids unspecified conduct on the other Web sites (the contractual obligation being that they must comply with your terms of service in order to be indexed). The other Web sites may or may not have asked to have their information included in your index in the first place.

Now, after several years, you change your terms of service to proscribe very specific activities on other Web sites which may have been widely practiced for years. You take some action against whichever sites you feel are violating your terms of service and then subsequently one or more of those sites’ operators sues you.

Can your terms of service articulate how someone may exercise the right to sue you (if at all) if you never obtained their consent to those terms to begin with? The answer is not necessarily self-evident to me.

I think terms of service are enforceable as long as the consumer (the receiver of the terms of service) is not required to sacrifice any rights or claims without first giving informed consent. The issuer of the terms of service can govern how its own service is managed but such terms do not themselves carry the weight of law.

That is, a contractual relationship does not necessarily confer much legal power upon a service provider. We can thank the The New York Times for bringing that principle to my attention with this article about the airline industry. Major U.S. airlines are once again including minimum stay rules in their leisure-class ticketing. Business travelers will be expected to pay more for their short-notice flights, but if business travelers attempt to save money by booking double-back or back-to-back trips in advance, the airlines reserve the right to penalize those passengers.

That is, no one goes to jail and no one will be sued. The airlines can simply deny service to people (strand them at their destinations) who don’t want to pay full price for going home. Based on what I read in the article (which does not, in my opinion, constitute an exhaustive explanation of the law) that is all the airlines can do.

You won’t go to jail for booking trips your way; you just run the risk of having to pay more for your flight home if an airline realizes what you’ve done.

Does that sound familiar in a search context?

You won’t go to jail for publishing what search engines call “web spam”. Nor can they sue you for simply creating a lot of content they don’t want to index. But they can refuse to include your content in their services.

Or can they? If a search engine changes its Webmaster guidelines and subsequently knocks sites out of its index that are in violation of the new guidelines but which were not demonstrably in violation of the previous guidelines, are the Web site operators protected by the requirement for informed consent or are the search engines exercising a right to change terms of service between periods of non-continuous service?

I don’t know if there is a legal standing for the concept of “continuous service” in contract law, but if there is, has it been defined with respect to the Web?

The indexing of content is not the only service a search engine provides to Web sites. Search engines also create visibility for that content in response to appropriate queries. And at least three search engines that I can think of off the top of my head provide ratings for Web sites. There may be more than three (I am referring to Google, Alexa, and Compete for anyone who is curious).

You might ask why I would include Compete and Alexa in the category of search engines. Or you might not, but my reasoning is simple: they crawl the Web and index at least some Web sites. Ask, Google, Live, and Yahoo! may be the best known search engines but they provide only a fraction of the services that search engines provide to the Web. There are many specialty search engines out that we in the SEO community use every day without ever including them in the same class as Google.

Legally, what is a search engine? Has that definition been tested in the courts or legislated? I don’t know. The subject of search engine ethics has been formally reviewed going back at least as far as 2005, if not earlier.

Search engines have actually spent a fair amount of time in court. For example, Eric Goldman discusses two recent cases involving search engines. In the first case Goldman cites, a judge allowed that while Google AdWords has a binding contract some claims brought against Google had to be left open. In the second case a Yahoo! motion to dismiss was not granted (the court asked for more information) but Goldman notes that a clause in Yahoo!’s contract barring class litigation is unenforceable under California law.

These examples only serve to show that search engine Web contracts are not — as constructed at the times these lawsuits were filed — necessarily “ironclad”. They are not completely enforceable.

Goldman’s blog, by the way, is concerned with all technology and marketing law. He recently presented a talk on keyword law that had to be truncated (at the Legal Frontiers in Digital Media conference). A couple of slides provide interesting insight into just how many questions remain to be answered with respect to keywords, meta tags, advertising, and trademark law.

I will mention one other post from Goldman’s blog. He recently discussed consumer generated content (which enjoys considerable legal protection under the idiotic Communications Decency Act of 1996 - often cited as 47 USC 230). The law was written to protect large online service providers such as AOL and Prodigy from being sued for failure to enforce their terms of service. Legal venues and pundits alike have extended the law’s coverage to protect people like me (from being sued for comments you may post on my sites) from being sued by people like me (who have been lied about on the Internet by other people).

If you understand that the CDA 1996 has empowered libelers and character assassins en masse and still don’t have a problem with it, be patient. You will one day be faced with the harsh reality that someone else can shamelessly post some provably false, untrue remarks about you on the Web and you’ll be unable (under American law) to have the remarks taken down. The legally required response to any defamation takedown request boils down to: “Can you show me the judgement you won in court against the defaming person?”

To be fair, in 2006 the 1934 Communications Act was amended to include Cyberstalking as a felony definition among the crimes that are prohibited. That is, the Internet is now covered (at least in part) by the 1934 Communications Act and all telecommunications law related to that act. That could be a good thing, although most people who engage in online character assassination appear to be unaware of the 2-year prison term they could end up serving for harrassing other people online.

It remains to be seen whether practical limits of today’s technology and law enforcement agencies will render the Cyberstalking statute unenforceable.

Nonetheless, the CDA of 1996 is a 2-edged sword for Web publishers because while it protects us from endless streams of litigation (a fact that has not escaped me), it nonetheless increased the pressure upon the government to do something about abusive behavior on the Internet. It’s an area of law that may spill over into the area of enforcement of contracts and legal definitions of search engines.

For all I know these acts have already been cited in numerous legal briefs and court documents. Searching the legal Web is tedious and time-consuming.

What I can say for sure is that there are practical limits to search engines’ terms of service, but those terms of service — if challenged — may not always be enforceable anyway. In which case, we can expect to see little to no agreement on what constitutes acceptable Web content because as search engine optimizers continue to experiment (sometimes with encouragement from the unlikeliest corners), search engines will continue to narrow, refine, and ultimately broaden their terms of service in order to make a clear (but general) statement to both searchers and publishers what they will and will not accept.

Which could mean that you may spend the next four years developing a site that suddenly transgresses a changed search engine Webmaster guidelines document in 2012. At that point, you’ll have little recourse (per my unprofessional understanding of American Internet law in 2008) but to start over again from scratch, or to salvage as much as you can by making changes and asking for forgiveness.

Just take comfort in the fact that search engines have no legal power to make you do anything.