Notice

Authors: Luã Fergus and Laila Lorenzon

Notice is a term that refers to the disclosure to a particular stakeholder of a relevant fact or situation. To be deemed a valid notice, such disclosure should contain a sufficient level of detail for the recipient to understand that information revealed and investigate the facts or situation. There are also certain formalities or general requirements to be complied with when it comes to what is deemed as qualified notices for the purpose of specific legal processes. For instance, several contracts specify that a notice of termination must be sent in writing and within a specified period. Similarly, when it comes to the information that must be provided by data controllers to data subjects, article 12(1) of the GDPR requires it to be provided in a concise, transparent, intelligible, and easily accessible form, using a clear and plain language – especially when directed to a child.

One important type of notice is the one regarding changes to a previously agreed contract. Here, cases involving the credit card and telecommunications industries provide helpful insight as to how courts evaluate modifications of standard terms, also known as “contracts of adhesion”, as there is no individual negotiation. For example, in Badie v. Bank of America (1998)¹, where a bank attempted to modify credit card terms by adding an arbitration procedure where one was not already part of the contract terms, a US court found that the offeree did not receive proper notice of the modification because the proposed change was printed on an insert with the monthly bill, and nothing otherwise called the change to anyone’s attention.

Other companies have found out the hard way that simply providing a complete set of the proposed revised terms, without any indication as to which terms had been changed, was not sufficient notice (see e.g., DIRECTV, Inc. v. Mattingly, 2003²). On the other hand, a company that prominently announced modified terms with its monthly bill, and provided an Internet address and telephone number where the customer could access the revised terms, was found to have successfully put the customer on notice of the changed terms, as highlighted in Ozormoor v. T- Mobile USA Inc. (2008)³.

The appearance and placement of the notice also are important. One company was unable to enforce a notice of a contract modification that was printed on its invoice where it was the fifth item on the second page of the invoice, in ordinary type (Manasher v. NECC Telecom, 2007)⁴. On the other hand, in Briceño v. Sprint Spectrum (2005)⁵, Sprint’s notice was enforceable where it printed “Important Notice Regarding Your PCS Service from Sprint” in bold letters immediately below the amount due on the invoice. The notice also prominently discussed the changes in the contract terms and provided both a telephone number and a website where the revised terms could be found.

US Courts have also looked at whether the modification has been accepted by the offeree. For example, in Klocek v. Gateway, Inc (2000)⁶ the purchaser of a Gateway computer did not see the Gateway’s standard terms (and was not provided notice about the terms) until the computer was shipped to the purchaser and she opened the box. Gateway’s standard terms contained several provisions, including an arbitration clause. When Gateway moved to dismiss a class-action lawsuit considering the Federal Arbitration Act, the court refused to enforce the arbitration clause, deciding that the plaintiff offered to purchase the computer and Gateway accepted. Gateway’s standard terms then became either an expression of acceptance or a confirmation of the offer under section 2-207 of the U.C.C. However, the court found that the rest of the provisions in Gateway’s standard terms, including the arbitration clause, were not part of the original purchase agreement and were not enforceable.

More recently, in Knutson v. Sirius XM Radio (2014)⁷, the terms regarding an automobile’s trial subscription to a satellite radio service were sent to the owner a month after the purchase of the automobile in an envelope marked “Welcome Kit”. The Ninth Circuit refused to enforce the additional terms because there was no mutual assent to the terms. The Ninth Circuit found no evidence that the purchaser of the automobile knew that he had purchased anything from Sirius or was entering into a relationship with Sirius, let alone had agreed to the terms (which contained an arbitration clause). Therefore, continued use of the service by the purchaser did not manifest assent to the terms.

In the online context, courts that have addressed modifications generally have respected these traditional contract principles and have held that attempted modifications are unenforceable when the person to whom the modification is offered has no reason to know of the proposed changes to the agreement. As a result, online contract modifications tend to fall for failure to satisfy the notice requirement⁸.

In evaluating online contract modification, courts have paid close attention to the differences between electronic and face-to-face or paper communications. This is a refreshing development, given that this is not always the case in opinions addressing online contract formation in the first instance. The opinion in Campbell v. General Dynamics (2005)⁹, a dispute involving an attempted modification of an employment handbook, provides an example of judicial awareness that electronic messages can get lost in the electronic shuffle. In Campbell, an employer attempted to modify an employment handbook by sending a mass company-wide e-mail message containing hyperlinks to the proposed changes to its employees. One of the proposed modifications was a binding arbitration clause. In holding that the modification was not effective, the court focused on the expectations of the employee receiving the modification offer. Given that the mass e-mail message did nothing to communicate its importance and that employment changes at General Dynamics were usually communicated in person by means of signed writing, the court held that the attempted modification was not binding.

The communicative value of online interaction similarly influenced the Ninth Circuit in holding that the attempted modification in Douglas v. U.S. District Court (2007)¹⁰, was ineffective. The dispute, in that case, arose when a phone service provider changed its online terms to add new service charges, a new arbitration clause, and a class action waiver. It did so without notifying its customers of the changes and simply posted the changes to its website. The plaintiff had agreed to automatic billing and therefore had little reason to visit the website on a regular basis. After the district court found the arbitration clause enforceable, the Ninth Circuit reversed, finding that the subscriber had not been given notice of the changes. The Ninth Circuit also felt strongly that parties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side. This fact, plus the fact that the plaintiff would not have known where to find the changes to the terms of use even if he had visited the website, led the court to hold that the modifications were unenforceable.

The court in Rodman v. Safeway (2015)¹¹, similarly refused to impose a duty on website users to continually check for changes to online terms. Rodman was another case in which the author of online terms of use posted changes to those terms on its website but made no attempt to notify its customers of the changes. The defendant attempted to justify its actions by highlighting a clause in its original terms of use that reserved the right to amend the terms at any time and imposed a duty on the customer to keep up with changes to the terms. Like the court in Douglas, the court in Rodman stressed that it is unreasonable to expect a customer to check a website regularly for changes to online terms. Moreover, the court, applying traditional contract doctrine, noted that a customer could not assent to future changes of which there was no reason to know would come.

In the context of platforms, the term ‘notice’ is typically (but not only) used concerning the alleged illegality of a particular type of content or behavior, following which the platform may remove or disable access in accordance with a notice and takedown, a notice and notice procedure or some other standardized process. These notices can contain allegations of either a violation of existing law or a violation of the platform’s terms of service. A civil society effort led by the Electronic Frontier Foundation (EFF) in 2014¹² established a number of minimum requirements for such notices, which they call “content restriction requests”, as part of the Manila Principles of Intermediary Liability¹³. In particular, the Principles stipulate that a content restriction request pertaining to unlawful content must, at a minimum, contain the following:

• The legal basis for the assertion that the content is unlawful;
• The Internet identifier and description of the allegedly unlawful content;
• The consideration provided to limitations, exceptions, and defences available to the user content provider;
• Contact details of the issuing party or their agent, unless this is prohibited by law;
• Evidence sufficient to document legal standing to issue the request;
• A declaration of good faith that the information provided is accurate.

By contrast, content restriction requests pertaining to an intermediary’s content restriction policies must, at the minimum, contain the following:

• The reasons why the content at issue is in breach of the intermediary’s content restriction policies;
• The Internet identifier and description of the alleged violation of the content restriction policies;
• Contact details of the issuing party or their agent, unless this is prohibited by law.

Finally, notices in the context of online platforms may refer also to the disclosures made by platforms to users about the content that is prohibited, and the content from each specific user that is removed. This is a core principle of the Santa Clara Principles¹⁴, another civil society movement led by the EFF and a small group of organizations and advocates, establishing guidelines for content moderation that have been implemented by Reddit and endorsed by Apple, Github, Twitter, YouTube and other platforms.

The Principles require companies to provide detailed guidance to the community about what content is prohibited, including examples of permissible and impermissible content and the guidelines used by reviewers, and an explanation of how automated detection is used across each category of content. They also require minimum information to be included in the notices about why her post has been removed or an account has been suspended:

• URL, content excerpt, and/or other information sufficient to allow identification of the content removed;
• The specific clause of the guidelines that the content was found to violate;
• How the content was detected and removed (flagged by other users, governments, trusted flaggers, automated detection, or external legal or other complaints);
• The identity of individual flaggers should generally not be revealed, however, content flagged by the government should be identified as such, unless prohibited by law.

Explanation of the process through which the user can appeal the decision.

In addition to these requirements as to the form of notices, two important elements of the Santa Clara Principles concern the records of such notices: their availability in a durable form accessible even if a user’s account is suspended or terminated, and the presentation to users who flag the content of a log of past content moderation requests they have submitted, along with the corresponding outcomes of the moderation processes. However, at the same time, it has been considered that the Principles fail to specifically address the peculiarities of certain practices, calling for an update.

Some of the drafters of the Santa Clara Principles (Suzor, West, Quodling, York, 2020)¹⁵ noted that the implementation of the principles is unsatisfactory in certain respects, in particular, due to (1) the prevalence of confusion from users about the exact content or behavior that triggered a sanction from the platforms; (2) the systemic failure on the part of platforms to provide good reasons to explain the decisions they reach; (3) the failure to inform users of how (and especially by whom) triggered the flagging of specific content for review by the platform´s moderation system; and (4) the confusion about who exactly makes content moderation decisions, and their possible biases. Accordingly, they call for the following disclosure in notices:

• More general demographic information about the makeup of their moderation teams, with particular regard to age, nationality, race, and gender;
• Detailed information about the training and guidelines associated with the moderation process, including what processes exist to support moderators to make consistent and well-informed decisions in the context of potential ambiguity.

Differential social impact of the inputs and outputs and the algorithms of these systems, to understand bias in moderation decisions. Analysis of this type will require large-scale access to data on individual moderation decisions as well as deep qualitative analyses of the automated and human processes that platforms deploy internally.

References

1. Badie v. Bank of America, 67 Cal. App. 4th 779, 79 Cal. Rptr. 2d 273 (Cal. Ct. App. 1998).
2. Directv v. Mattingly, 376 Md. 302, 829 A.2d 626 (Md. 2003)
3. Ozormoor v. T- Mobile USA Inc., U.S. Dist. LEXIS 58725 (E.D. Mich. June 19, 2008).
4. Manasher v. Telecom, No. 06-10749 (E.D. Mich. Sep. 18, 2007)
5. Briceño v. Sprint Spectrum, L.P., 911 So. 2d 176 (Fla. Dist. Ct. App. 2005).
6. Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332 (D. Kan. 2000)
7. Knutson v. Sirius XM Radio Inc., 771 F.3d 559 (9th Cir. 2014)
8. American Bar Association. (2016). Online Contracts: We May Modify These Terms at Any Time, Right? American Bar Association. Available at: https://www.americanbar.org/groups/business_law/publications/blt/2016/05/07_moringiello/.
9. Campbell v. General Dynamics, 407 F.3d 546 (1st Cir. 2005).
10. Douglas v. U.S. District Court, 495 F.3d 1062 (9th Cir. 2007)
11. Rodman v. Safeway, Inc., 2015 U.S. Dist. LEXIS 17523 (N.D. Cal. 2015).
12. Electronic Frontier Foundation – EFF. EFF Seeks Public Comment About Expanding and Improving Santa Clara Principles. Available at: https://www.eff.org/press/releases/eff-seeks-public-comment-about-expanding-and-improving-santa-clara-principles.
13. Manila Principle of Intermediary Liability. Available at: https://www.manilaprinciples.org/principles
14. The Santa Clara Principles on Transparency and Accountability on content moderation. Available at: https://santaclaraprinciples.org
15. Suzor, N. P., West, S. M., Quodling, A., York, J. (2019). What do we mean when we talk about transparency? Toward meaningful transparency in commercial content moderation. International Journal of Communication, 13, 18.