Look and Listen started following me on Twitter and because it is a brand I care about, I took a look at its Twitter page on the Web and followed it back. I noticed that its background image contains text regarding its terms and conditions as follows:
Visit us on Facebook for T & C’s: Facebook.com/lookandlisten
This is Look and Listen’s Twitter profile page on Twitter as viewed in a browser (the screenshot below is taken off my 24 inch screen. Viewing the Look and Listen page on my 13 inch MacBook reveals almost none of the important text at all – try this on your screen and see whether the link is even visible):
While this is certainly one way to publish terms and conditions, it is not a very effective way of making Twitter users aware of those terms and conditions for various reasons. Before I explore the reasons, it is important to understand the value of terms and conditions as they apply to social media platforms. I wrote a post about that titled “Disclaimers for social media” which may be worth reading before continuing with this post.
This method replies on users viewing the Twitter profile in a Web browser with sufficient screen resolution to accommodate the whole background image. People using older displays or lower screen resolutions may not see the text indicator for the terms on Facebook at all.
The next challenge is that users viewing Look and Listen’s Twitter profile in other applications will not see the background image at all. Below are a couple examples:
The background image with the link to Look and Listen’s terms and conditions are not visible at all in this views (and it is safe to say that a significant number of people using Twitter don’t use the Twitter page but rather apps with these or similar views) and those users viewing the Look and Listen profile are likely to be unaware that such terms exist. This means that they can not be said to have agreed to the terms or even be somehow bound by them in the absence of their knowledge of the terms’ existence. So that approach only perhaps works with a fairly narrow sub-set of users who view the profile through a Web browser with sufficient screen resolution.
There are a couple solutions which are probably better solutions. The one solution I came across is a regular tweet containing a reference or link to terms and conditions. One company that does this is actually a law firm and my previous employer, Werksmans Attorneys. This is what their terms and conditions advisory looks like:
This approach has its benefits. It reminds people who are following the Twitter account about the existence and location of the applicable terms. Its limitation is that first time followers who follow from a profile view are not necessarily advised about the terms and conditions upfront and that could be problematic.
Another approach, which I prefer involves inserting a link into the bio section of a Twitter profile. A nice example of this is Jeremiah Owyang’s Twitter profile which includes a link to terms that apply to his Twitter stream:
The advantage of this approach is that a prospective follower will see the Twitter bio and the link in the bio in most, if not all, Twitter apps. It is the first encounter with a Twitter user and more readily regarded as binding on new followers in much the same way that website terms and conditions are binding on website visitors. The disadvantage is that the link is not visible other than in a profile view. The best approach is probably a combination of the approach typified by the Werksmans reminders and the bio link approach.
Another reason why the background image approach isn’t satisfactory is that the link is to a document located on Facebook. While referencing terms and conditions located on another page or website altogether is acceptable, Look and Listen simply refers to the Facebook Page which doesn’t have any terms and conditions apparent on the Page at all. I only received a link to various terms and conditions when I queried this with Look and Listen on Twitter in a direct messaging conversation.
The effect of this is that no real terms and conditions are presented to Twitter followers and this means that Look and Listen lacks a legal framework optimised for its social media activities on Twitter. Instead, it will find itself subject to whatever the default legal positions may be on a case by case basis. In other words, Look and Listen has not done much to mitigate its risks.