Blog platforms like Tumblr, Blogger, Posterous and WordPress.com are very popular, as are other platforms like Twitter and Facebook. While the majority of these services’ users are individuals, there are a substantial number of business users who are drawn to the opportunities these services present. What these users often don’t realise is that their blogs can effectively be taken from them by the service providers themselves, often for no particular reason.
Each of these services allow users to create accounts and operate their blogs or profiles under a personalised domain. The domain might be name.service.com or service.com/name. These domains become associated with users, often so much so that unscrupulous users register these accounts in brands’ names in the hope of extorting a profit from the company concerned in exchange for relinquishing the domain or username (this behaviour is brandsquatting). The companies that operate these platforms typically reserve the right, in their terms and conditions, to terminate offending registrations and make those domains or user accounts available to brand owners. Unfortunately mistakes can be made and legitimate users can find themselves deprived of their online identities in the face of a demand from a brand owner. Depending on the service concerned, blogs can be removed quite intentionally and without reason.
danah boyd, a researcher and generally smart lady, discovered this the other day.
boyd has an account with one of the more popular blogging services, Tumblr (I also have an account there), and she discovered that her blog was effectively removed by Tumblr a couple days ago due to a competing claim by a company which uses the same name as her online persona, “zephoria”:
I’m not the most active Tumblr user but I’ve had an account on the service for quite some time because teens are pretty active there. I even used the service to post an ongoing list of different open-access journals which was regularly visited by academics. I also had a list of interesting books and other such collections. It now seems to be gone. And the URLs are now broken (although some are still available in Google’s cache). [Update: I learned that it was all moved to a new location, again, without them telling me.]
A few years ago, I learned that there is a technology consulting company called Zephoria.com. And apparently, they’ve become a social media consulting company. In recent years, I’ve found that they work hard to block me from using the handle of zephoria on various social media sites. Even before the midnite land grab on Facebook, they squatted the name zephoria, probably through some payment to the company. But this is a new low… Now they’re STEALING my accounts online!?!?!? WTF?!?!?!
Tumblr’s President, John Maloney, confirmed boyd’s suspicions that she lost her domain due to a trade mark claim lodged with Tumblr by Zephoria, the company, and a Tumblr employee relocated boyd’s blog and delivered her domain to the company instead. The account was restored to boyd but this incident highlights a hidden problem which many may be oblivious to.
Terms and Conditions Prevail
The central issue is that these services are privately operated and their use is subject to their terms and conditions. As I mentioned in my brandsquatting post, these terms and conditions govern these sorts of domain/username/account related issues, not independent bodies like ICANN in the context of a more conventional domain name dispute. When users sign up with Tumblr, Posterous, WordPress.com and virtually every other service on the Web today, they are required to agree to the applicable terms and conditions which are the legal framework which govern access to and use of the services concerned.
In the case of Tumblr, its Terms of Service give it quite a bit of discretion over its site (the emphasis is mine):
Tumblr reserves the right to remove any Subscriber Content from the Site, suspend or terminate Subscriber’s right to use the Services at any time, or pursue any other remedy or relief available to Tumblr and/or the Site under equity or law, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Subscriber Content or if Tumblr is concerned that Subscriber may have breached the immediately preceding sentence), or for no reason at all.
This means that Tumblr can terminate your account or remove your content without any particular reason. Consider the impact such unilateral action could have on a user (including a business user) who operates a blog on a service like Tumblr and comes to rely on that blog as part of an online identity or business presence. Tumblr isn’t the only company that reserves this right, though.
Without limiting any of those representations or warranties, Automattic has the right (though not the obligation) to, in Automattic’s sole discretion (i) refuse or remove any content that, in Automattic’s reasonable opinion, violates any Automattic policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Automattic’s sole discretion. Automattic will have no obligation to provide a refund of any amounts previously paid.
Termination. Automattic may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately.
10. Termination; Suspension. Google may, in its sole discretion, at any time and for any reason, terminate the Service, terminate this Agreement, or suspend or terminate your account. In the event of termination, your account will be disabled and you may not be granted access to your account or any files or other content contained in your account although residual copies of information may remain in our system for some time for back-up purposes. Sections 2, 3, 5 – 8, and 10 – 15 of the Agreement, along with applicable provisions of the general Terms of Service (including the section regarding limitation of liability), shall survive expiration or termination.
Unfortunately this is something that could happen to legitimate users who make use of a username or domain which, as boyd pointed out, “have meaning to them personally” or even which relate to a brand or the company behind that brand. This leaves users in a precarious position, particularly where they are using a handle which is similar to or the same as an existing brand, even if that brand is only known on the other side of the planet. The Internet’s global nature means that consumers in North America may come across a Cape Town company’s Tumblr blog, thinking it belongs to an unrelated American company. That is a degree of confusion which could lead the American company to believe its trade mark is being infringed and Tumblr should transfer the disputed domain to it as the trade mark holder in that market.
Because of the ease with which a service provider can suspend or terminate an account on its service, rightly or wrongly, this exposes users to a real risk that they could lose their account or the benefit of a domain or handle they have been using with honest intentions. These service providers contractually retain a very broad discretion over how their services may be used and under what circumstances.
What can users do? Fortunately the cost of hosting services is fairly low so one option is to establish a blog under a domain name on a hosting service contracted by the user. This option is referred to as a “self-hosted” option and it removes the possibility of companies like Tumblr, Automattic or Google arbitrarily messing with users’ accounts on the basis of their terms and conditions alone. That said, this option has its own, similar challenges. Hosting providers may retain the right to take similar steps should they become aware of violations of their terms and conditions too. In addition, a brand owner could challenge a domain name registration with the appropriate registrar or domain name dispute resolution service where it feels a domain name was improperly registered.
Both options have their associated risks and hosted blogging services particularly so. What is important is that users (including companies) make sure they review the terms and conditions relating to the service/s they use or intend using and satisfy themselves that they are not exposed to a level of risk that they find unacceptable.
(Credit: Thanks to William Carlton for pointing this story out on his blog)