Facebook | Update on Terms

February 18, 2009 by chuq · Comments
Filed under: The Online Life

A couple of weeks ago, we revised our terms of use hoping to clarify some parts for our users. Over the past couple of days, we received a lot of questions and comments about the changes and what they mean for people and their information. Based on this feedback, we have decided to return to our previous terms of use while we resolve the issues that people have raised.

Many of us at Facebook spent most of today discussing how best to move forward. One approach would have been to quickly amend the new terms with new language to clarify our positions further. Another approach was simply to revert to our old terms while we begin working on our next version. As we thought through this, we reached out to respected organizations to get their input.

via Facebook | Update on Terms.

It’s good to see Facebook commiting to try to do the right thing here. It’s too bad they had to get raked across the coals in public first. While a lot of the bloggers and pundits love to declare evil first and loudly, it seemed to me that there was a lot of noisy over-reaction going on; but then, that’s unprecedented here in the online world, right? It’s not news unless we can post an unflattering photo and declare our superiority, after all. Preferably with a snarky meow.

To me, the more interesting question is how Facebook got here and how they could have avoided it.

The first problem, and its a big one, is that the TOS was updated without notification of the users. Notice that Apple’s itunes always puts up a dialog announcing a TOS change and making you pretend you read it and click the “I accept” when they change it? Legally, you can write a TOS that allows you to change it and users are expected to somehow know this has happened. Legally, users have the right to hate your guts when you do it. Disclosure is a big plus here; when it changes, announce it and explain it. that’s one reason why a blog exists, right?

Zuckerberg did explain it — after the fact, once the controversy started. By the time he did, it was too late. People were already ripping Facebook. By the time Facebook engaged the community, it was too late. (and why, for a site that’s basic function is enabling communication and community, is Facebook so quiet and distant from its community? Just asking. it’s not unique in this, either).

But the second problem here isn’t the late engagement. It’s that what Zuckerberg said the intent was, and what the TOS said, were two very different beasts. And here’s the big problem, and one where Facebook made the mistake so many companies make; they allowed the lawyers to dictate corporate policy and not define it.

Imagine if Zuckerberg had taken his blog postings and given it to the lawyers when the TOS rewrite project started. Imagine if every time a draft of the TOS came back, he said “that is not what our intentions are” and rejected it. Imagine…

I’ve been in far too many meetings with lawyers over things like this, and far too often, everyone defers to the lawyers. Ultimately, the lawyers get to write legalese in ways the lawyers are comfortable with that managers can live with, rather than pushing the lawyers to come up with language that the managers are comfortable with that the lawyers can live with.

So you end up with TOS’s that require a college degree to decode, that basically take away everything from the end user rather than strike a balance with the user, one that makes the lawyer comfortable.

Problem is, the more comfortable your lawyer is, the more uncomfortable your user will be. And if you’re the manager driving the TOS wording, your job is to make sure the TOS both reflects the company’s needs and goals and intentions, but also allows the user to be comfortable uing the site. As the manager in charge, your lawyer is your friend and looking out for the company’s best interest — but it’s critical that the lawyer be tasked to come up with language that fits the company’s needs and which is going be acceptable to users.

That’s a rare accomplishment these days. But it can be done by setting the tone early (as Zuckerberg did – too late!) and then pushing the lawyer to find a way to enable that in the legalese. You don’t do that by deferring to the lawyer; in this case, the managers in charge have to champion for the users. Better yet, has anyone ever bothered to “beta test” a TOS, or even focus group it? nope. It’s a one-sided discussion, and there’s no feedback until it goes final and people get pissed. And at that point, it’s too late.

So if you don’t want to be the next Facebook, or if Facebook doesn’t want to end up doing this again, a few suggestions:

See the blog entry Zuckerberg wrote? That needed to be written before the first meeting and handed to everyone involved and the lawyers tasked with implementing that philosophy into the TOS
Every time a draft comes back and it doesn’t match the intetions in that opening memo, send it back.
NDA a few key users, especally people critical of your policies. Get their feedback. Listen to it. Find the compromise position.
Don’t release it until you’re happy with it. the lawyer doesn’t have to be happy with it. I’d argue that the happier the lawyer is with it, the more work you have in balancing the TOS to handle the user’s needs as well. Your lawyer has to be willing to LIVE with it, not like it.
When you release it, announce it; blog what you’re doing, and why. document and explain the changes. Transparency rules.
And don’t be afraid to take the wider feedback and tweak it again.

And remember, as we move more and more into shared content creation, social networking, people stuffing things on sites they don’t own and run, these issues are going to become more widespread, more complex, and less clear. So unilateral “lawyer first, end-user never” TOS language is going to increasingly create friction points, and occasionally turn into full-scale firefights. So either recognize this up front and commit to avoid it, or risk being the next to face the wrath of pissed off users.

In a shared reality, dictating terms is becoming increasingly impractical. Lawyers love to dictate. The manager of the project’s job is to both champion the users and keep the lawyer focused on doing what’s best for everyone. the lawyer is there to do the company’s bidding on defining the terms — not dictate them. Too many companies are unwilling to make the laywer do that.

In the social world, that’s going to increasingly become a requirement. Embrace it and it can become a competitive advantage — think about it; right now, there are a bunch of people looking for alternatives to Facebook over this. Facebook now has to convince them that alternative IS Facebook. And competitors can use their TOS right now to compete with Facebook, if they do it right.

Is that an opportnity you want to give to your competitors?