Terms of service as cyber-regulation

Event report

A panel discussion was held to examine the online regulation of companies’ digital terms of service (ToS).

It included eight panelists representing organizations such as the Electronic Frontier Foundation (EFF) and UNESCO, as well as a legal expert and a prosecutor from the federal circuit court in Rio de Janeiro, researchers, and others.

To begin, the chair encouraged the audience to consider how their behavior online is regulated by the offline environment.

The first panelist opened with a presentation on a UNESCO study on ToS, which found that companies exert much control over many aspects of users’ lives as relates to privacy, through their internal policies and practices. The UNESCO panelist emphasized that more transparency regarding companies and ToS is critical. Companies’ transparency reports are important, but such reports mainly concern their interaction with governments. There needs to be more information on companies’ personal policies and practices.

Jeremy Malcolm, EFF, explained that there are not many legalistic polices from governments that regulate or assess ToS. He stated that: ‘there is not a lot of regulation of terms of service’.

However, he added that there are some legal instruments that can be used to encourage companies to protect users and their data.

Alan, a UNESCO representative, described how a ranking project of 16 major Internet and telecommunication companies has been published that examines how they interact with their users via their terms of services. Another panelist, also from UNESCO, emphasised that having ToS in multiple languages is important, as are communicating to users when ToS change or when content is removed or modified. Users should know what the policies governing the services they use are.

Panelists highlighted how companies do not treat users as the primary audience for ToS, as illustrated by their length, and difficulty to read. The chair stressed that ToS should be created for users, not legal professionals, other companies, or governments.

Two examples of how ToS are being addressed at the policy level in Brazil and Europe were presented to the audience.

Concluding discussion included the sharing of resources such as www.TOSback.org, https://itunestandc.tumblr.com/, and https://tosdr.org/.

By Michael Oghia