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As a citizen of the EU and a country with strong privacy protection, my privacy rights are protected by law, and neither Facebook's terms nor the fact that any

by rickmb 14y ago

As a citizen of the EU and a country with strong privacy protection, my privacy rights are protected by law, and neither Facebook's terms nor the fact that any other entity can collect certain information from Facebook negates that right. The claims by Snopes are equally false: whatever Facebook terms a user may have accepted whenever, they are trumped by the law. You can't give up your civil rights with single click.

illuminate 14y ago
The Snopes article refers to the forward which cites US law. It doesn't directly address the hoaxes abroad.
objclxt 14y ago
> You can't give up your civil rights with single click. Of course you can. Contracts can and do override a right enshrined in law. I can sign an agreement that gags me from talking about something, in which case I've given up my right to free speech (if you're in a country where such a right exists). You seem to be referring to the EU's Data Protection and privacy policies - there are explicit exemptions under the EU/US Safe Habor (which applies here) that allow contractual opt-out from certain rights. I am not saying this is the case with Facebook: merely that it is naive to assume just because a right is enshrined in law doesn't mean you cannot give it up through a contract.
- shimon_e 14y ago
  Unless if the courts find the contract non binding.
- aneth4 14y ago
  EULAs are "contracts of adhesion": http://en.wikipedia.org/wiki/Standard_form_contract#Contracts_of_adhesion http://en.wikipedia.org/wiki/Standard_form_contract#Contract... While they are not worthless, they are not nearly as binding or enforceable as your normal commercial contract. Standards vary and the jurisprudence is not clear, but indeed you "can't give up your civil rights with single click."
  - vavb 14y ago
    Not sure where you're from aneth, but in Commonwealth jurisdictions they definitely are binding. Any ambiguity is construed against the party that wrote the contract (which is the same in normal commercial contracts) and any unfairness is generally not allowed (same as normal consumer contracts). The case law in Australia will enforce standard form contracts where the weaker party misunderstood terms that are not ambiguous. Facebook doesn't really have any ambiguity with their EULA. Failing to read the EULA probably isn't enough. On a side note, nearly all insurance contracts are contracts of adhesion. It's usually a breach of utmost good faith (which doesn't come into play in normal consumer contracts) which will determine enforceability. Facebook only have to act with good faith, which they more or less do. Edit: i'm not a lawyer, and this isn't legal advice, i've just picked up bits and pieces as I've gone :-)
  - aneth4 14y ago
    vavb: you appear to be hellbanned I am from the US, and that is certainly not the case here. Contracts of adhesion are relatively weak here.
    - deleted 14y ago
      [deleted]
  - chacham15 14y ago
    No, the fact that it is a contract of adhesion only goes to show that there was procedural unconscionability, you still need to prove that there is substantive unconscionability in order to show that the contract is unfair and therefore unenforceable. So yes, you can "give up your civil rights with single click." (At least as far as American law is concerned)
- talmand 14y ago
  In most cases free speech is referring to the government attempting to restrict your speech, not a private entity. But even then, if you sign a NDA (of which US federal employees often do) then you are not giving up your rights to free speech. You are promising to withhold information about a certain topic if someone not authorized to know such information asks. You can certainly exercise your right to free speech and tell that person what you know, but then you may face consequences for doing so.
  - nthj 14y ago
    > You can certainly exercise your right to free speech and tell that person what you know, but then you may face consequences for doing so. I know what you meant, but the above statement is almost always true. An example of an abridgment of free speech would be: You say you hate the King, then you're put in jail. It's not free speech if there are consequences: the 1st amendment does not mean, "the government must refrain from cutting your tongues out," nor does it mean "you cannot willingly sign an agreement to withhold information with a private party", but it does mean "the government doesn't get to punish you for saying things it dislikes."
    - talmand 14y ago
      I suppose I did word that rather badly. I would rather say that you can say whatever you wish, but you may face consequences based on what you said and the topic covered. I'm just trying to get across that too many people use "free speech", in US terms, incorrectly. The government punishes people all the time for speech it "dislikes". Many people are in prison right now for that reason, usually because it involved people signing NDAs. Seems you have free speech in terms of unpopular speech aimed at the government as long as you didn't promise not to speak in the first place. Well, also as long as you don't say something the government doesn't want public; you know, national security and all that. I would say that there are possible consequences to the concept that people label as "free speech", it's just that not all of them involve the government. Many people say things like "this forum mod deletes my posts, that violates my free speech" which in fact it does no such thing. You can criticize the government all you want but private entities can react to that as they please. In other words, "free speech" is a very tricky thing.
- SEMW 14y ago
  Let's have a bit of common sense here. 'Contracts override rights in law' is as wrong as 'Rights in law override contracts' (note that I'm not saying your comment said or implied that). Clearly, there are some regulations that you can contract out of. Equally clearly, there are some regulations that you can't. It's usually pretty clear which category any particular provision is in. Example from the first category: "Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not of the essence of a contract of sale" - s.10(1) SOGA1979. Example from the second category: "A person cannot by reference to any contract term ... exclude or restrict his liability for death or personal injury resulting from negligence." - s.2(1) UCTA1979 A common pattern is to allow you to contract out of a provision in general, but not when you're dealing with a consumer, e.g. "In a case where the buyer deals as consumer ... subsections (1) to (3) above [which lay out default rules for the passing of risk, but can usually be overridden in the contract] must be ignored and the goods remain at the seller’s risk until they are delivered to the consumer" - SOGA1979 s.20(4). See also: the UTCCR1999, which applies only to consumer contracts and can't be contracted out of. All examples from UK law. IANYAL.
  - polymatter 14y ago
    For those of us who are not yet even studying law, SOGA1979 is the Sales of Goods Act 1979 and UCTA1979 is the Unfair Contract Terms Act 1979. There are also several ammendments that have been made to them more recently (if anyone else had heard of Sale of Goods Act 1995).
dotBen 14y ago
Unless you feel you can dispute it, the jurisdiction for your use of Facebook and the jurisdiction underwhich you agreed to use Facebook is Santa Clara County, Calfiornia, United States. See 16.1 in https://www.facebook.com/legal/terms https://www.facebook.com/legal/terms Also, although the EU has strict data retention and data-export laws, you agreed to give up when you signed up for Facebook because Facebook keeps its data in the US.
- dredmorbius 14y ago
  According to Facebook. Again, if local law (or a jury nulification) trumps this, FB are SOL.
  - Tyrannosaurs 14y ago
    Jury Nullification is a concept in criminal law, it has no basis in civil law under which this would be argued. In civil law if the jury completely disregarded the facts / the law to the point that the judge believes that no reasonable jury could have reached the decision they did, the judge would be likely to enter a judgement not withstanding verdict whereby he or she basically says "I know what the jury said but they're wrong". https://en.wikipedia.org/wiki/Judgment_notwithstanding_verdict https://en.wikipedia.org/wiki/Judgment_notwithstanding_verdi...
    - dredmorbius 14y ago
      Thanks. I should've known that, really. Was looking for the civil equivalent of a finding for a party that would tend to go against the apparent legal facts of a case. I'm not sure how much faith I put in juries, but sometimes they do the right thing.
- aes256 14y ago
  Doesn't work like that. Anyone outside the US and Canada is doing business with Facebook Ireland Limited. They are bound by Irish law.
vavb 14y ago
There are two things that worry me about this post: - that people think that they can change a contract just by saying something that the other party most likely never even read, which to me is like thinking that McDonalds will pay you $1000/hr to flip burgers just because you told your friends you'd like that wage - that there seems to be no distinction between what is legal and what is enforceable. It doesn't really matter if what Facebook does in relation to user rights is legal or not, whether or not there is a pragmatically enforceable breach does. If Facebook did use their data in some way that the message forbids, how do these people think they're going to stop them? By showing them a wall post? At best it's going to be weeks of stress and/or thousands of dollars. It's the same as if a bootstrapped startup has tried to defend their product with a patent. Sure you have a legal right, but how the hell are you going to enforce it if Google decide they want in? Also: preventing citizens from contracting out of their legal rights would actually be a huge violation of the citizens rights and runs against the underlying principle of contract law in most jurisdictions - that two parties who've made an agreement freely should be bound be that agreement. There is an assumption that you've read the terms and conditions when you signed up for Facebook and they don't really hide the fact that everything you do is more or less theirs. I don't really think you could say that you're induced into anything on it. You might get lucky in the right court with the right advocate, you might not.

by rickmb 14y ago

illuminate 14y ago

The Snopes article refers to the forward which cites US law. It doesn't directly address the hoaxes abroad.

objclxt 14y ago

> You can't give up your civil rights with single click. Of course you can. Contracts can and do override a right enshrined in law. I can sign an agreement that gags me from talking about something, in which case I've given up my right to free speech (if you're in a country where such a right exists). You seem to be referring to the EU's Data Protection and privacy policies - there are explicit exemptions under the EU/US Safe Habor (which applies here) that allow contractual opt-out from certain rights. I am not saying this is the case with Facebook: merely that it is naive to assume just because a right is enshrined in law doesn't mean you cannot give it up through a contract.

shimon_e 14y ago
Unless if the courts find the contract non binding.
aneth4 14y ago
EULAs are "contracts of adhesion": http://en.wikipedia.org/wiki/Standard_form_contract#Contracts_of_adhesion http://en.wikipedia.org/wiki/Standard_form_contract#Contract... While they are not worthless, they are not nearly as binding or enforceable as your normal commercial contract. Standards vary and the jurisprudence is not clear, but indeed you "can't give up your civil rights with single click."
- vavb 14y ago
  Not sure where you're from aneth, but in Commonwealth jurisdictions they definitely are binding. Any ambiguity is construed against the party that wrote the contract (which is the same in normal commercial contracts) and any unfairness is generally not allowed (same as normal consumer contracts). The case law in Australia will enforce standard form contracts where the weaker party misunderstood terms that are not ambiguous. Facebook doesn't really have any ambiguity with their EULA. Failing to read the EULA probably isn't enough. On a side note, nearly all insurance contracts are contracts of adhesion. It's usually a breach of utmost good faith (which doesn't come into play in normal consumer contracts) which will determine enforceability. Facebook only have to act with good faith, which they more or less do. Edit: i'm not a lawyer, and this isn't legal advice, i've just picked up bits and pieces as I've gone :-)
- aneth4 14y ago
  vavb: you appear to be hellbanned I am from the US, and that is certainly not the case here. Contracts of adhesion are relatively weak here.
  - deleted 14y ago
    [deleted]
- chacham15 14y ago
  No, the fact that it is a contract of adhesion only goes to show that there was procedural unconscionability, you still need to prove that there is substantive unconscionability in order to show that the contract is unfair and therefore unenforceable. So yes, you can "give up your civil rights with single click." (At least as far as American law is concerned)
talmand 14y ago
In most cases free speech is referring to the government attempting to restrict your speech, not a private entity. But even then, if you sign a NDA (of which US federal employees often do) then you are not giving up your rights to free speech. You are promising to withhold information about a certain topic if someone not authorized to know such information asks. You can certainly exercise your right to free speech and tell that person what you know, but then you may face consequences for doing so.
- nthj 14y ago
  > You can certainly exercise your right to free speech and tell that person what you know, but then you may face consequences for doing so. I know what you meant, but the above statement is almost always true. An example of an abridgment of free speech would be: You say you hate the King, then you're put in jail. It's not free speech if there are consequences: the 1st amendment does not mean, "the government must refrain from cutting your tongues out," nor does it mean "you cannot willingly sign an agreement to withhold information with a private party", but it does mean "the government doesn't get to punish you for saying things it dislikes."
  - talmand 14y ago
    I suppose I did word that rather badly. I would rather say that you can say whatever you wish, but you may face consequences based on what you said and the topic covered. I'm just trying to get across that too many people use "free speech", in US terms, incorrectly. The government punishes people all the time for speech it "dislikes". Many people are in prison right now for that reason, usually because it involved people signing NDAs. Seems you have free speech in terms of unpopular speech aimed at the government as long as you didn't promise not to speak in the first place. Well, also as long as you don't say something the government doesn't want public; you know, national security and all that. I would say that there are possible consequences to the concept that people label as "free speech", it's just that not all of them involve the government. Many people say things like "this forum mod deletes my posts, that violates my free speech" which in fact it does no such thing. You can criticize the government all you want but private entities can react to that as they please. In other words, "free speech" is a very tricky thing.
SEMW 14y ago
Let's have a bit of common sense here. 'Contracts override rights in law' is as wrong as 'Rights in law override contracts' (note that I'm not saying your comment said or implied that). Clearly, there are some regulations that you can contract out of. Equally clearly, there are some regulations that you can't. It's usually pretty clear which category any particular provision is in. Example from the first category: "Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not of the essence of a contract of sale" - s.10(1) SOGA1979. Example from the second category: "A person cannot by reference to any contract term ... exclude or restrict his liability for death or personal injury resulting from negligence." - s.2(1) UCTA1979 A common pattern is to allow you to contract out of a provision in general, but not when you're dealing with a consumer, e.g. "In a case where the buyer deals as consumer ... subsections (1) to (3) above [which lay out default rules for the passing of risk, but can usually be overridden in the contract] must be ignored and the goods remain at the seller’s risk until they are delivered to the consumer" - SOGA1979 s.20(4). See also: the UTCCR1999, which applies only to consumer contracts and can't be contracted out of. All examples from UK law. IANYAL.
- polymatter 14y ago
  For those of us who are not yet even studying law, SOGA1979 is the Sales of Goods Act 1979 and UCTA1979 is the Unfair Contract Terms Act 1979. There are also several ammendments that have been made to them more recently (if anyone else had heard of Sale of Goods Act 1995).

dotBen 14y ago

Unless you feel you can dispute it, the jurisdiction for your use of Facebook and the jurisdiction underwhich you agreed to use Facebook is Santa Clara County, Calfiornia, United States. See 16.1 in https://www.facebook.com/legal/terms https://www.facebook.com/legal/terms Also, although the EU has strict data retention and data-export laws, you agreed to give up when you signed up for Facebook because Facebook keeps its data in the US.

dredmorbius 14y ago
According to Facebook. Again, if local law (or a jury nulification) trumps this, FB are SOL.
- Tyrannosaurs 14y ago
  Jury Nullification is a concept in criminal law, it has no basis in civil law under which this would be argued. In civil law if the jury completely disregarded the facts / the law to the point that the judge believes that no reasonable jury could have reached the decision they did, the judge would be likely to enter a judgement not withstanding verdict whereby he or she basically says "I know what the jury said but they're wrong". https://en.wikipedia.org/wiki/Judgment_notwithstanding_verdict https://en.wikipedia.org/wiki/Judgment_notwithstanding_verdi...
  - dredmorbius 14y ago
    Thanks. I should've known that, really. Was looking for the civil equivalent of a finding for a party that would tend to go against the apparent legal facts of a case. I'm not sure how much faith I put in juries, but sometimes they do the right thing.
aes256 14y ago
Doesn't work like that. Anyone outside the US and Canada is doing business with Facebook Ireland Limited. They are bound by Irish law.

vavb 14y ago

There are two things that worry me about this post: - that people think that they can change a contract just by saying something that the other party most likely never even read, which to me is like thinking that McDonalds will pay you $1000/hr to flip burgers just because you told your friends you'd like that wage - that there seems to be no distinction between what is legal and what is enforceable. It doesn't really matter if what Facebook does in relation to user rights is legal or not, whether or not there is a pragmatically enforceable breach does. If Facebook did use their data in some way that the message forbids, how do these people think they're going to stop them? By showing them a wall post? At best it's going to be weeks of stress and/or thousands of dollars. It's the same as if a bootstrapped startup has tried to defend their product with a patent. Sure you have a legal right, but how the hell are you going to enforce it if Google decide they want in? Also: preventing citizens from contracting out of their legal rights would actually be a huge violation of the citizens rights and runs against the underlying principle of contract law in most jurisdictions - that two parties who've made an agreement freely should be bound be that agreement. There is an assumption that you've read the terms and conditions when you signed up for Facebook and they don't really hide the fact that everything you do is more or less theirs. I don't really think you could say that you're induced into anything on it. You might get lucky in the right court with the right advocate, you might not.