The AOL Terms of Service brouhaha pushed along some thinking about I’ve doing recently about TOSs and EULAs, and how changes in technology and the we way we use it may change the way they are drafted.
The AOL episode demonstrates very clearly that the flame wars of the new millenium (how’s that for hyperbole?) will be very different from those of the 90’s. In the 90’s, flame wars were fought on the web forums and email servers of the day, only emerging into public view when they became enough of an oddity to be picked up by the mainstream media. These days, everyone is a publisher, and the flame wars burn that much hotter and brighter – starting and ending their lives in full public view. This, of course, is the power of blogging – and it’s The New Normal of corporate PR. And as far as TOSs and EULAs are concerned, a poorly drafted or unreasonable document risks the wrath of the blogosphere and serious PR damage.
David Fraser at The Privacy Law Blog deals with the PR damage issue on privacy matters all the time and tells me he trys to keep it front and centre in the client’s attention.
I see it too, and I think lawyers need to get more involved in helping their clients understand that damage that can de done from an overly restrictive, careless or heavy-handed approach to drafting. In an email exchange earlier this morning with a mainstream journalist covering the AOL story, I wrote:
Many lawyers’ natural tendency, especially when drafting to the retail market, is to put as much ‘oomph’ in the TOS as possible from their client’s perspective. They make it as broad as possible, essentially.
That was necessarily a simplification, of course, but I see this played out a lot. Just because you can, doesn’t mean you should. Take what you need, but don’t get greedy. Now, more than ever.
And one more thing. How one manages the PR fallout is an issue as well. Until now, the conventional approach was to handle it (or not) via dealing with the mainstream media – and no doubt that will continue to be important. But if you can’t neutralize the problem with your own Scobleizer, it will be harder. Fewer people will give you the benefit of the doubt. The story will accelerate faster than it would have otherwise.
So, live by the blog or die by the blog? How’s that for hyperbole ….