Table of contents
- The best of intentions, but a poisonous gift
- First problem clause: The Web site operator’s unilateral right to terminate
- Second problem: The Web site operator’s unilateral right to amend
- The danger in these clauses: “Illusory” consideration
- Conclusion: Be careful about using the Automattic TOS for your own site
- Share this:
If you’re developing a Web site, you’ll want to be be extremely careful about following Automattic’s suggestion that you adapt their terms of service from their WordPress.com site. Unless I’m missing something, it seems distinctly possible that doing so without editing some crucial provisions could leave you just about as naked, legally, as having no terms of service at all. That’s because:
- Automattic’s terms of service give the Web site operator the unilateral right to terminate the user’s access — with or without cause, and with no refund;
- The Web site operator also has the unilateral right to retroactively amend the terms of service, along more or less the same lines that got Blockbuster into trouble in a 2009 court decision;
- As a result, the terms of service might be held to be “illusory” and unenforceable;
- That in turn could strip away key legal protections for the Web site operator, such as those relating to limitations of liability, choice of forum and -law, arbitration, etc.
Several weeks ago I tried to alert Automattic to this problem, apparently without success — see the Note section at the end of this posting.
The best of intentions, but a poisonous gift
It seems clear that Automattic had laudable intentions when, near the beginning of their Web site’s terms of service, they encouraged other Web site operators to “steal and repurpose” the terms of service:
Note, we’ve decided to make the below Terms of Service available under a Creative Commons Sharealike license,
which means you’re more than welcome to steal it and repurpose it for your own use,
just make sure to replace references to us with ones to you,
and if you want we’d appreciate a link to WordPress.com somewhere on your site.
We spent a lot of money and time on the below, and other people shouldn’t need to do the same.
[Extra paragraphing added.]
This permission has been around since at least November 2006, according to the archived versions I found at the Wayback Machine.
This is a superb idea, and Automattic should be applauded for it — but in this particular case I fear it might be a poisonous gift.
First problem clause: The Web site operator’s unilateral right to terminate
Look at the last grammatical paragraph of section 2:
… Automattic has the right (though not the obligation) to, in Automattic’s sole discretion
(i) refuse or remove any content that, in Automattic’s reasonable opinion, violates any Automattic policy or is in any way harmful or objectionable, or
(ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Automattic’s sole discretion.
Automattic will have no obligation to provide a refund of any amounts previously paid.
[Emphasis and extra paragraphing added.]
In the same vein, look at the first sentence of section
Automattic may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately.
In other words, if I’m reading the contract correctly, even if you’ve paid in advance for the premium features of Automattic’s site, they can still give you the boot, and keep your money, whenever it strikes their fancy.
I’m certainly not suggesting Automattic would actually do this in an arbitrary or capricious manner; from what I’ve seen, they seem like one of the more responsible, user-friendly companies out there.
And to be sure, there is one exception: Under the third sentence of section
10 12, If you’re a VIP hosting subscriber, you can’t be kicked off the site unless you materially breach the terms of service and fail to cure the breach within 30 days:
Notwithstanding the foregoing, if you have a VIP Services account, such account can only be terminated by Automattic if you materially breach this Agreement and fail to cure such breach within thirty (30) days from Automattic’s notice to you thereof;
provided that, Automattic can terminate the Website immediately as part of a general shut down of our service.
[Extra paragraphing added.]
This exception, though, just gives more emphasis to the fact that, under the contract, unless you’re a VIP Services subscriber, you can be kicked off the site at any time for any reason or no reason, at Automattic’s whim.
Second problem: The Web site operator’s unilateral right to amend
Now look at section
9 11 of Automattic’s terms of service:
Automattic reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement constitutes acceptance of those changes. …
There’s nothing in this language to indicate that the Web site operator can modify the Agreement only on a going-forward basis.
The danger in these clauses: “Illusory” consideration
Under contract, law, a paid subscriber to a Web site using these terms of service could argue that most or even all of the site operator’s contractual promises were “illusory.”
If a court agreed, it might hold the entire terms of service to be unenforceable for lack of consideration. That could mean, for example, that:
- there might be no contractual limitations on the Web site operator’s liability;
- the choice-of-forum provision might disappear, meaning that a user might have an easier time suing the operator in the user’s home jurisdiction instead of in the operator’s jurisdiction;
- a court might hold that the contract is governed by some law other than that specified in the choice-of-law clause; and
- the requirement for private arbitration of disputes might vanish, meaning that disputes would be litigated in court, and thus in public.
Not a pleasant prospect, at least not for the Web site operator.
In Harris v. Blockbuster Inc., a unilateral-amendment clause in Blockbuster’s terms of service caused the company to lose a crucial court fight, one in which it had tried to force a customer privacy-violation lawsuit into arbitration. The court noted that Blockbuster had the right to change the rules of the game at any time; it held that this made the arbitration provision illusory, and therefore denied Blockbuster’s motion to compel arbitration.
(It’s entirely possible that, by the same token, the rest of the terms protecting Blockbuster would likewise have been held unenforceable, but the court didn’t reach that question. The court’s opinion can be found here. Law professor Eric Goldman did an excellent writeup of the case last year on his Technology & Marketing Law blog; see also this analysis on the Morrison & Foerster Web site.
[ADDED 2014-11-01:] Much the same thing happened to Zappos after a security breach; see Eric Goldman’s write-up of this case, too, at How Zappos’ User Agreement Failed In Court and Left Zappos Legally Naked (2012).
Conclusion: Be careful about using the Automattic TOS for your own site
It would be truly a Good Thing if leading companies would make solid, workable contracts available on a Creative Commons basis for other businesses to use. (That’s one of my long term goals for the technology-contract clause compendium I’ve been working on.)
It’d be unfortunate, though, if other Web site operators got themselves into trouble by adapting Automattic’s existing terms of service, as those terms themselves suggest.
For those who don’t know, Automattic’s WordPress.com site is a freemium blog-hosting site. Automattic publishes the free, world-famous, open-source WordPress blogging software. My blog runs, happily and (so far) trouble-free, on WordPress software, as what’s known as a self-hosted installation; I really like the software.
Several weeks ago I tried to alert Automattic to the terms-of-service problem described in this posting, via a submission on their Web site contact page. I didn’t think to keep a copy before I clicked on the Submit button, but I’m pretty sure I specifically asked that the submission be passed on to their attorneys. I haven’t heard anything back, and the terms of service don’t seem to have changed in any relevant respect. In fact, according to the archival copy I found at the Wayback Machine, those aspects of the terms of service don’t seem to have changed significantly since May 2008, the last time that page was archived.