I was really hoping I could ignore this and it would go away on its own, but alas, once again my Facebook and news feeds have been inundated with a Facebook copyright/privacy hoax that claims, simply by posting a statement to your Facebook feed, you can counteract some alleged changes to Facebook’s policies.
Everything about this hoax and its statements is categorically false. As several stories pointed out, the latest iteration doesn’t even get the name of the convention right, calling it the “Berner” rather than the Berne convention.
So rather than simply pointing out that the notices are a hoax or highlighting all of the individual ways it is inaccurate, I wanted instead to turn this into a teaching moment and explain why you can’t change Facebook’s (or any site’s) terms of service with a simple post, tweet or image.
The reason is fairly straightforward but it isn’t rooted in copyright law. Rather, it’s rooted in contract law.
You Sign, I Sign, E-Sign
When you first signed up for Facebook, you had to agree to the site’s legal policies. This was done with a very simple tick of a box, which indicated that you agreed to them.
However, under the Electronic Signatures in Global and National Commerce Act (ESIGN Act), that tick is a valid signature from you, the same as when you sign a lease, a cell phone contract or another legal document.
Without delving too deep into contract law, for a contract to be valid, there is a requirement there be both an offer and an acceptance, or some active step taken to agree with the offer. With a terms of service, it’s pretty clear what is what. When they present the TOS to you, that’s an offer, your tick that you agree is your acceptance. Thus, a legally-binding contract between you and Facebook is born.
That contract also includes the terms under which Facebook can alter the agreement. Section 14 of the TOS covers exactly that. However, the contract doesn’t provide individual users a means to alter the agreement.
As such, for you to alter the agreement, you would require a new offer and acceptance, this time from Facebook. Your posting of a notice on your Facebook timeline, at best, is an offer. However, Facebook most likely never saw the statement and, if they did, did nothing to actively accept or agree to it no box was ticked and there was no change in their behavior at all.
In short, Facebook’s TOS, like most site’s is entirely one-sided and their for Facebook’s protection, not yours. Facebook gave itself the power to alter the agreement unilaterally but you, as the user, have no such right.
As such, without an explicit agreement from Facebook, any change you try to make to their terms of service is as meaningless as an unsigned contract.
So What Can You Do?
To begin with, such a statement, even if it did work, probably isn’t necessary.
Furthermore, nothing in any of Facebook’s terms tries to lay claim to the copyright in your work. While you grant Facebook a broad license to use the work, you retain all copyright in everything you post on Facebook. Craigslist did try this at one point, but not Facebook.
But, if you are still unhappy with the terms Facebook offers, as the Snopes article on the hoax says, there are only four real options:
- Don’t sign up for Facebook
- Negotiate with Facebook to reach a new agreement
- Lobby Facebook to change the policy you dislike, either on Facebook or elsewhere.
- Cancel your account
However, even canceling your account will not free you from the entirety of the terms of service as many elements remain in effect.
So, if you are a current Facebook user and unhappy with the terms, you’re likely better off trying to rally other users against them as Facebook has shown it will back off elements of its TOS if they are unpopular enough.
To me, the most frustrating thing about this hoax, other than its recurring nature, is that most who participate in it seem to realize that it’s probably false. They post with prefaces such as “Better safe than sorry” and “Just in case”.
The problem is that even a quick Google search would have proved that these notices do no good and are riddled with factual errors. But rather than spending a few seconds to get the facts, they post anyway under the assumption it “can’t hurt”.
The problem is that it can hurt. Perpetuating this hoax will inevitably lead some to believe that they are protected. This may lead them to post items they otherwise wouldn’t be comfortable with or, even worse, ignore real changes and potential problems with Facebook’s terms.
In short, this hoax provides a false sense of security and a severe misunderstanding how contract law works. It might not seem like it’s harmful as posting it doesn’t change anything, the myths it perpetuates can cause a great deal of harm down the road.
On matters of law, we need a more informed populace, not just to avoid falling for hoaxes like this one, but to avoid much more serious pitfalls. Unfortunately, this type of posting pushes us in exactly in the wrong direction.