Transparency and Informed Consent

The Internet has fundamentally changed our relationship with information, which has, among other things, resulted in a rapid expansion of recognition of the right to information and a growing consumer demand for openness on the part of intermediaries. Where users’ personal information is being stored and processed, there is also a broadly recognised right to track how this is being done.

It has now become relatively common among major tech firms to publish transparency reports, though there are vast differences in the amount of information disclosed. Terms of service are another key avenue for outreach. The lack of attention that users typically pay to these is troubling given that these terms serve as the legal basis for the relationship between the company and its users. The fact that users so rarely pay attention to terms of service gives companies a licence to draft these terms incredibly broadly and/or vaguely or even, in some cases, in a deliberately misleading manner. This has resulted in a situation where, in many cases, it is difficult for even a careful reader to deduce the practical implications of terms of service:

Recommendations for Private Sector Online Intermediaries:

Transparency Reporting

  • Intermediaries should produce regular transparency reports which include, at a minimum:
    • Statistics on the number of takedown requests received, broken down by category of request, by type of requester, by the date and subject of the request, and by the location of the requester.
    • Statistics on the number of requests received for information about users, broken down by category, by type of requester, by date and by the location of the requester.
    • Information about actions intermediaries have taken proactively to enforce their terms of service, including statistics about material removed and accounts deleted.
  • Intermediaries should publish detailed information about their procedures for responding to requests from law enforcement agencies, as well as their procedures for processing other government requests to restrict content, block services or deactivate accounts.

 Terms of Service

  • Intermediaries should take steps to ensure that their terms of service are clear to users, for example by publishing clear, concise and easy to understand summaries or explanatory guides.
  • Intermediaries should publish their terms of service in each of the languages in which they offer services, and post this information prominently on their website.
  • Intermediaries should support initiatives which aim to enhance understanding of their terms of service, such as “Terms of Service; Didn’t Read”, and implement measures to try to get users actually to read them.
  • Intermediaries should consult with users prior to major amendments to their terms of service, notify users of amendments to their terms of service and make previous versions available online so that users can assess the changes.
  • Intermediaries should provide reasonable avenues of engagement for users seeking clarification of their terms of service and allow users to propose changes.

Other Issues

  • Intermediaries should publish information about how their terms of service apply in different jurisdictions.
  • Intermediaries should challenge legal restrictions on what information they can release about takedown and user information requests, and should explore alternative avenues to facilitate disclosure, such as the use of warrant canaries.
  • Intermediaries should not automatically opt their users into new services.
  • Intermediaries should be careful to avoid misleading promotional material, taking into account the rapidly evolving nature of the services that are being offered, which means that it is difficult for established industry meanings and understandings to evolve.

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