Terms and Conditions

The social network revolution of the past two decades of digital and technological innovation and exponential growth has been embraced by artists to transform their communications with each other and their viewing audiences. But few of us consider the nature and extent of our relationship with social media platforms – until things go wrong.

What should artists be aware of when sharing work on social media? A good question, recently answered online for its artist-members by the legal team of the Design and Artists Copyright Society (DACS): a useful collection of practical queries helpfully answered in plain language. The key learning points for artists to take away from DACS’s vade mecum is that they should always read the terms and conditionsbefore signing up to any social media platform, and consider not signing up if there are unacceptable provisions. Sound advice, but do artists read online terms and conditions (T&Cs) before clicking the box agreeing to them in order to proceed? Credible internet consumer researches show that online consumers are impulsive and highly unlikely to think carefully about the ramifications of their online actions.

Contractual agreements where T&Cs are unilaterally drafted and imposed by one party on the other, whereby that other party is faced with a ‘take it or leave it’ deal, are commonly known as ‘contracts of adhesion’. The inclusion of adhesive T&Cs does not necessarily render contractual agreements wholly invalid. Adhesion usually enables consumers to resist or defend themselves against enforcement by the dominant party of specific T&Cs that are procedurally ‘take it or leave it’ or substantively oppressive and unjust.

Consumer protection laws of many countries disallow enforcement of any T&Cs against a consumer who has not been offered the opportunity of genuinely negotiating those T&Cs – a legal doctrine often known as ‘procedural unconscionability’. And some countries disallow enforcement of any T&Cs that are so one-sided against the consumer as to offend a ‘morally reasonable person’ – a further legal doctrine of ‘substantive unconscionability’.

Legislators and courts worldwide have yet to provide universally accepted legal and judicial solutions that balance the needs of e-commerce with protection of online consumers. It is sometimes argued that in a competitive market online consumers can and should shop around until they find suppliers offering the most favourable T&Cs. But most online suppliers of goods and services impose the same or similar T&Cs – and in any event most of us do not evaluate our online purchases by comparing and contrasting T&Cs of suppliers.

Furthermore,it is widely acknowledged that T&Cs of adhesive contracts are usually drafted by lawyers instructed by online suppliers primarily to avoid or reduce the business’s legal liabilities rather than to offer a fair and reasonable deal to online consumers. Such lawyers are also often hired by specific industry bodies to produce harmonised T&Cs on behalf of all their trading members.

T&Cs of agreements where contracting parties are or may be based in different countries invariably specify which single state’s laws will operate to resolve future possible disputes. In the case of adhesive contracts, the drafting party’s T&Cs usually impose the laws of the state most convenient to itself. Leading social-media platforms are headquartered in the US, and specify their ‘choice of governing law’ as, for example, California (Facebook and its subsidiary Instagram) or New York (Tumblr).

Throughout the decades of the social network revolution, laws in the US developed in parallel to govern disputes over social-media platform agreements. User-friendly ‘notice and take-down’ legislation gives users rights to require platforms to remove illegal content. And platform hosts are obliged to respond to court orders or allegations that content is illegal by removing it (especially where there are alleged copyright infringements, privacy violations, or libellous material).

Few countries beyond the US have enacted notice and take-down legislation giving content users clear legal rights over platform hosts. But such countries often allow use of their common principles of law to give some measure of protection to online content; for example, UK’s copyright laws are helpful in this respect. DACS is especially active and successful in issuing take-down notices on behalf of its artist-members via its copyright advice and infringement management services.

The reverse problem is frequently experienced by artists: images taken down by platforms unilaterally and without notice.  Such censorship is often unpredictable and erratic, usually caused by algorithms programmed to target classes of unacceptable material rather than assessing specific images. Artists who experience such take-downs ask themselves (usually for the first time) what legal rights they have – to which the answer is likely to be that they have none.

DACS urges artists to be mindful that ‘whilst social-media platforms can be a cost-effective way of promoting your work, in making your images accessible you are increasing opportunities for it to copied and used by others without your permission – also known as copyright infringement’. DACS understandably focuses its advice on copyright, explaining that by accepting T&Cs artists grant a copyright licence to platforms to display their content and make it accessible by users anywhere in the world. DACS warns that doing so means artists are also agreeing that anything published on the platform is ‘sub-licensable, meaning the platform can authorise another company to use your work … and your content is usually available for free, meaning you won’t receive any royalties for the content you publish on the platform …and some platforms give their other users permission to access or display your work, which means they can replicate it in their personalised dashboards, or share it on other social media platforms and web applications.’

DACS reminds artists that most social media platforms state that T&Cs continue to operate after account deactivation, meaning that images and links to content might remain accessible after artists have deleted their online accounts. T&Cs may be updated from time to time, and artists are usually obliged to accept any changes by virtue of their continued use of the platform. Respected social-media platforms email users notice of impending changes (good online user practice is to check platforms regularly for updates rather than awaiting notices that may not arrive). DACS offers artists useful tips to help protect images of their work posted on social media platforms:

  • Use the copyright symbol with your name and the year of creation next to your work. This informs people that you are the copyright holder and encourages them to seek permission if they wish to reproduce it.
  • Consider adding watermarks to your images. Many digital image editing programmes can help you do this.
  • Share only low resolution images. This limits the range of infringements that can occur.
  • Only post what’s necessary to promote your style and range of work and link your images back to your website where you control the terms and conditions.
  • Keep track of the images you publish and on what social-media platforms you have published them on. This may help you in the event of an infringement.

Nevertheless, if artists wish to exercise total control over exposition of their works they should consider not using social media at all. In a rapidly accelerating digital environment, perhaps it is time for more realistic arrangements between social-media owners and users.

 

©Henry Lydiate 2017

 

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.