Why your Facebook disclaimer means diddly

by | Sep 29, 2015 | Contracts

I think it’s important to begin with a reminder of what makes a contract. See, generally, a contract is going to govern any business/consumer relationships, including your use of Facebook. When you sign up for Facebook, it makes you agree to its terms of use, which includes its Privacy Policy. That is your contract. That is what governs.


So how did your relationship with Facebook become governed by this? The first thing you need for a binding contract is an offer. Facebook offered you to use its site as long as you agreed to its terms of service. The next thing you need is acceptance. When you clicked I Agree to the terms of use, you accepted Facebook’s offer. Then we need consideration. Consideration is something of value that is promised in exchange for another thing of value. There is tons of consideration both ways here. Facebook is giving us the use of the site, which comes with many benefits. We give Facebook access to our data, which again, lots of benefits. Finally, there must be a meeting of the minds. Eg, we and Facebook need to be on the same page as to what our terms are. And we have that spelled out in the Terms of Service.

So why does your posting mean diddly? Because you can’t unilaterally change a contract. If you want to change what governs your relationship with Facebook, you have to go through that whole offer, acceptance, consideration, meeting of the minds jazz. You can’t just throw words out there and say this is how we do things now. That’d be like hiring someone to paint your house in exchange for you paying her $1,000, then mid-paint yelling at her that you’re now going to be paying her $500, keep up the good work.

And, it’s cute that the originator of these hoaxes bothered to throw in some UCC language (that is the Uniform Commercial Code), but also totally misleading because it gives undue credibility to these posts. Those sections of the UCC cited in the hoax post address the concept of “reservation of rights,” which is designed in commerce to help protect people from unknowingly giving up rights by agreeing to certain contract terms. Eg, if somehow the way a contract plays out based on the interpretation of the wording wasn’t really clear or intended within the contract words itself, then a reservation of rights can save the day. It doesn’t allow you to avoid legally binding contract terms, and it doesn’t apply to privacy or social networking anyway.

So please, I implore you, quit it with these hoax posts. You’re cluttering my otherwise eclipse-blood-moon-filled-feed. And, as usual, this Blog is written in the simplistic of terms regarding a specific situation. Contract and UCC law can be complicated and treacherous, and a slight variation of facts can change the legal analysis. Beauregard, Burke & Franco has dealt with the drafting, negotiating, and litigating of hundreds of contracts in its almost 25 years of practice. If you have any contractual issues or questions, you should consult an experienced attorney.

By Adrienne Catherine H. Beauregard-Rheaume, Esq.