Better social media

for European consumers:

overview of changes
February 2018

The authorities of EU countries teamed up to tackle unfair terms and conditions

identified on social media.
The table below presents the outcome of the dialogue held between the authorities
and the social media companies.

Concerns raised
by Consumer Protection
Cooperation Authorities [effective date: [estimated
[effective date:
31.1.2018] effective date:
1.3.2018]
March 2018]

Jurisdiction and applicable law

Concern: Social media operators can- Facebook agreed to: No issues were iden- Google+ agreed to:
not stop EU consumers from bringing - modify its term on tified in the terms of - modify its term
proceedings against them in their jurisdiction and ap- service of Twitter. on jurisdiction and
Member State of residence and EU plicable law to put applicable law to
consumer law must apply. it in compliance put it in compliance
with EU legislation with EU legislation.
Explanation: Consumers residing in - remove the refer-
the EU may bring proceedings against ence to the laws
the other party to a (business-to-con- and jurisdiction of
sumer) contract before the Courts the State of Cali-
of the Member State where they are fornia in relation to
domiciled, provided the contract lies in EU consumers.
the scope of the other party’s com-
mercial or professional activities in
the Member State of the consumer’s
domicile. Accordingly, the contract
concluded by a consumer with a social
network operator shall be governed
by the law of the country where the
consumer has his habitual residence.
Concerns raised by Consumer
Protection Cooperation
Authorities [effective date: [estimated [effective date:
31.1.2018] effective date: 1.3.2018]
March 2018]

Waiver of mandatory consumer rights

Concern: Social media operators can- Facebook agreed No issues were iden- No issues were iden-
not deny consumers their rights under to remove the term tified in the terms of tified in the terms of
EU consumer law. that deprived users service of Twitter. service of Google+.
of the protections of
Explanation: The consumer should EU consumer law.
not be deprived of rights that arise
from the non-performance or the in-
adequate performance by the operator
of its contractual or statutory obliga-
tions under EU law, such as the con-
sumer’s right to cancel the contract.
Any term that requires the waiver of
the aforementioned category of rights
can be found in breach of EU consum-
er legislation.

Failure to identify commercial communications

Concern: The commercial nature of Facebook agreed No issues were iden- No issues were iden-
communications and sponsored con- to remove the term tified in the terms of tified in the terms of
tent cannot be hidden from consumers that released the service of Twitter. service of Google+.
but should be identifiable as such. platform from the
duty to identify com-
Explanation: Contractual terms must mercial communica-
be drafted in a clear manner and not tions and sponsored
give rise to doubts about their mean- content.
ing, especially in relation to the right
of consumers to be presented with
identifiable commercial content. Con-
sumers must understand the eventual
commercial nature of the content they
may be exposed to when using so-
cial media services as with any other
online content.
Concerns raised by Consumer
Protection Cooperation
Authorities [effective date: [estimated [effective date:
31.1.2018] effective date: 1.3.2018]
March 2018]

Consumer’s obligation to indemnify the provider and the waiver by the provider of all liability
Concern: Social Media operators Facebook agreed to: Twitter agreed to: Google+ agreed to:
cannot limit or totally waive responsi- - r emove the limita- - remove the to- - remove the limita-
bility in relation to their services while tions of its liability tal exclusion its tions of its liability
holding consumers fully responsible towards EU con- liability. towards users
for their actions. sumers - clarify the grounds
- clarify the grounds Twitter still needs to: for exclusion of
Explanation: Any term that creates a for exclusion of li- - remove the exist- liability pursuant to
significant imbalance of rights be- ability pursuant to ing limitation of EU consumer law.
tween the operators and consumers EU consumer law. its liability to the
can be considered as a breach of EU maximum extent
consumer law. Consumers should be Facebook still needs permissible under
able to exercise their rights that relate to: applicable law.
to the non or partial performance of - clarify that the
the social media operator’s contractual limitation to the
and other legal obligations. amount of a possi-
ble compensation
applies only to
professionals.

Removal of user generated content

Concern: Social media operators Facebook agreed to: Twitter agreed to: Google+ agreed to:
cannot remove posts or other user - c larify the grounds - foresee a proce- - clarify the grounds
generated content, such as pictures, that can lead to dure for an appeal that can lead to
without providing a clear justification the removal of against such a the removal of user
and without giving consumers the user generated removal. generated content
possibility to appeal. content. - acknowledge its
Twitter still needs obligation for a
Explanation: A contract clause cannot Facebook still needs to: notification of the
confer unlimited and discretionary to: - acknowledge its user
power to social media operators to -a  cknowledge its obligation for a - provide for an
determine the suitability of user-gen- obligation for a prior notification of appeal procedure
erated content, which is part of the prior notification of the user against such a re-
remuneration provided by the consum- the user - remove any other moval.
er for the service. As the storage and - c larify the proce- term that confers
display of such content is the main dure for an appeal unlimited power to
element of the social media service, against such a remove user gener-
consumers must have a clear under- removal. ated content.
standing of which content is allowed.
The absence of any criteria for the
determination thereof, creates a signif-
icant imbalance vis-à-vis consumers.
Concerns raised by Consumer
Protection Cooperation
Authorities [effective date: [estimated [effective date:
31.1.2018] effective date: 1.3.2018]
March 2018]

Power to unilaterally change terms and conditions

Concern: Social media operators Facebook agreed to: Twitter agreed to: No issues were iden-
cannot unilaterally change the terms - notify the users 30 - notify the users 30 tified in the terms of
and conditions, without clearly inform- days in advance of days in advance of service of Google+.
ing the consumer of the justification any change in its any change in its
and without giving, under reasonable terms terms.
notice to the consumer, the possibility - clarify the way
to cancel the contract. that it will notify Twitter still needs to:
its users. - better clarify the
Explanation: Any change in the terms derogations from
of a contract that has not been given the general obli-
with a reasonable notice and that gation to notify its
binds the consumer may be consid- users
ered unfair. - acknowledge that
an invalid or unen-
forceable provision
may affect the
validity of the con-
tract as a whole
- remind the users of
their right to cancel
their subscription
when they do not
accept the changes
in the terms and
conditions.

Power to unilaterally determine the scope and application of the terms and conditions
Concern: Social media operators Facebook agreed to: No issues were iden- No issues were iden-
cannot unilaterally decide to apply - notify its users tified in the terms of tified in the original
separate or new standard terms to and to ask for service of Twitter. terms of Google+.
some of their services, without inform- their consent when
ing consumers and without asking for separate terms
their consent. apply, in relation to
specific products
Explanation: It must be clear what or services of the
the terms applicable to a contract are, company.
as well as the content of the contract
itself, before the consumer is bound
by it and suppliers must not have
unlimited power to decide the scope
of application of a contract during its
execution.
Concerns raised by Consumer
Protection Cooperation
Authorities [effective date: [estimated [effective date:
31.1.2018] effective date: 1.3.2018]
March 2018]
Power to unilaterally terminate the contract, for any reason
Concern: Social media operators should Facebook agreed to: Twitter agreed to: Google+ agreed to:
always provide clear grounds for closing - clarify the grounds -b  etter define the - clarify the grounds for
down an account and should notify con- for the termination grounds for a termina- the termination of the
sumers accordingly. of the contract tion of the contract contract
- acknowledge its obli- - c larify the procedure - acknowledge its obli-
Explanation: The consumer, before gation for a notifica- for an appeal against gation for a notifica-
signing the contract, must be informed tion to its users the decision to termi- tion to its users
of the conditions that can lead to its - provide the consumer nate the contract. - foresee a procedure
termination. Those conditions should be with the possibility to for an appeal against
explained in clear and intelligible manner challenge the deci- Twitter still needs to: the decision to termi-
and they must not allow for termination of sion to terminate the - r emove any term that nate the contract.
the contract subject to a condition whose contract. provides the company
realisation depends on the operators unlimited power to
alone. Reasonable notice must be given to terminate the contract
consumers. with no clear justifica-
tion
- c learly acknowledge its
obligation for a prior
notification to its users
- s pecify when there can
be derogations from
this obligation.

Notice and action procedure

As information society service providers, Facebook agreed to: Twitter agreed to: Google+ agreed to:
social media operators are required by EU - clarify the grounds for -b  etter define the - clarify the grounds for
legislation, to make easily and permanently the termination of the grounds for a termina- the termination of the
accessible to the recipient of the service and contract tion of the contract contract
to national competent authorities and/or - acknowledge its obli- - c larify the procedure - acknowledge its obli-
designated bodies within the meaning of the gation for a notifica- for an appeal against gation for a notifica-
CPC regulation, adequate contact information, tion to its users the decision to termi- tion to its users
including an email address, so that they can - provide the consumer nate the contract. - foresee a procedure
be “contacted rapidly and communicated with with the possibility to for an appeal against
in a direct and effective manner”. challenge the deci- the decision to termi-
sion to terminate the nate the contract.
This requirement is in the interests of fair contract.
trading in electronic communications, as it
provides consumer protection authorities
with means to rapidly signal to social media
operators any practices on social media which
may infringe consumer or other legislation.

To make the exchange of information efficient

and mutually beneficial between consumer
authorities and social media operators, acting
as host providers, CPC authorities proposed
the establishment of a standardised commu-
nication format which should contain dead-
lines for the various exchange of information
so as to address the issues raised by illegal
content rapidly.