Following on from the first of this two-part series of articles, here I will be reviewing the end user licence agreement (“EULA”) applicable for TikTok users based in the EEA or Switzerland (“Terms”). Although the manner in which personal data is being processed is undoubtedly important, it is also important that users understand the terms and conditions associated with the social media platforms with which they choose to interact.
The following is an extract from section 7 (Content: User-Generated Content) of the Terms (my emphasis):
“[…] it being understood that you or your licensors will own any User Content (as defined below) you upload or transmit through the Services.
[…] You or the owner of your User Content still own the copyright in User Content sent to us, but by submitting User Content via the Services, you hereby grant us an unconditional irrevocable, non-exclusive, royalty-free, fully transferable, perpetual worldwide licence to use, modify, adapt, reproduce, make derivative works of, publish and/or transmit, and/or distribute and to authorise other users of the Services and other third-parties to view, access, use, download, modify, adapt, reproduce, make derivative works of, publish and/or transmit your User Content in any format and on any platform, either now known or hereinafter invented.
You further grant us a royalty-free license to use your user name, image, voice, and likeness to identify you as the source of any of your User Content.”
Albeit TikTok acknowledges that it does not own User Content, it does provide for TikTok to receive two licences; firstly quite a broad licence related to any User Content itself (“First Licence”) and secondly a royalty-free licence in relation to users’ “user name, image, voice, and likeness to identify you as the source of any of your User Content” (“Second Licence”). These licences are very similar to those included in terms and conditions applicable to other social media platforms, such as Facebook and Snapchat.
The First Licence may very well set alarm bells off for users with its inclusion of terms such as “irrevocable”, “perpetual” and “fully transferable”. The terms respectively meaning the First Licence cannot be revoked/terminated, will run in perpetuity, and the whole or part of the role performed by TikTok can be transferred freely. Further to this, the scope of the First Licence allows TikTok to “use, modify, adapt” and “make derivative work” of any User Content. Although this is justifiably a concern for many users, this is not something which is unheard of with regards to social media platforms (as mentioned above). The inclusion of “in any format and on any platform, either now known or hereinafter invented” could also be a legitimate cause for concern, as there is some uncertainty as to how wide reaching the First Licence could ultimately become.
Furthermore, other social media platforms, such as Snapchat, include a very similar licence to use any Public Content (e.g. “Story submissions that are set to be viewable by Everyone as well as content you submit to crowd-sourced Services, including Our Story”) under the premise that such content is “inherently public and chronicles matters of public interest”; this specifically carves out all other forms of user data (i.e. private user content) which is created on Snapchat, where softer licence terms are given (e.g. the omission of a perpetual and irrevocable licence). The noticeable difference here is that TikTok’s Terms do not distinguish between varying forms of User Content, and therefore all User Content generated will be licensed to TikTok under the First Licence. This could be an issue for some users maintaining a private profile whilst using TikTok, as it will not allow for the level of privacy and/or control over their User Content as they may think. Despite the foregoing, it is important to note that other social media platforms take very similar approaches to this issue of user content.
The following extracts are from section 10 (Limitation of liability), which sets out TikTok’s levels of liability under the Terms (my emphasis again).
“SUBJECT TO THE PARAGRAPH ABOVE, WE SHALL NOT BE LIABLE TO YOU FOR: (I) ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY); (II) ANY LOSS OF GOODWILL; (III) ANY LOSS OF OPPORTUNITY; (IV) ANY LOSS OF DATA SUFFERED BY YOU; OR (V) ANY INDIRECT OR CONSEQUENTIAL LOSSES WHICH MAY BE INCURRED BY YOU.”
Under English law, this type of clause is attempting to limit TikTok’s liability for all reasonably foreseeable consequential losses suffered, as per the second limb of the test established in the common law case of Hadley v Baxendale. The test provides for an injured party to claim for damages which were reasonably in contemplation of the parties at the date of contracting. Considering that the Terms are subject to the laws of Singapore, it is important to note that this approach (and common law) has been generally echoed by the Singaporean courts. So the question then arises as to what would a loss of such nature mean? Speculatively speaking, a user could suffer some form of reputational harm resulting in consequential loss. However, considering defamation has not been excluded here, there could still be recourse for them in any case. It is also worth pointing out that many other social media platforms include this same type of language in their own terms of use and therefore the inclusion of such isn’t particularly strange.
“ANY OTHER LOSS WILL BE LIMITED TO THE AMOUNT PAID BY YOU TO TIKTOK WITHIN THE LAST 12 MONTHS.”
As most users of TikTok will have downloaded the platform for free, this wording within the Terms would mean that TikTok’s total liability under the Terms is zero. Under English law, this attempt to limit liability could be considered unreasonable should the breach concerned be disproportionate (for example, a data breach or a claim for defamation etc).
“ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY YOU AS A RESULT OF: ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICE; ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES; YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.”
The wording above has also been included within the Terms. Although I cannot confirm as to why this wording is present, its lack of completeness (and therefore meaning) is ultimately a strong deterrent for developers copying terms from other social media platforms and/or not having legal professionals review its content.
“PLEASE NOTE THAT WE ONLY PROVIDE OUR PLATFORM FOR DOMESTIC AND PRIVATE USE. YOU AGREE NOT TO USE OUR PLATFORM FOR ANY COMMERCIAL OR BUSINESS PURPOSES, AND WE HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF GOODWILL OR BUSINESS REPUTATION, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY.”
TikTok’s prohibition on users to “use the Platform to advertise or perform any commercial solicitation” or to use TikTok “for any commercial or unauthorized purpose” without express consent, means that businesses should be very wary of using TikTok for any such commercial purposes; not just because it would constitute a breach of the Terms but as TikTok would have no liability for any of the losses set out in the first extract provided under section 10 (above) in any case.
In summary, the evidence here doesn’t really suggest anything particularly uncommon is occurring and that these Terms are very much the same scenario that users agree to when using any other social media platform. The underlying point of both articles within this series being that users should always be conscious of the terms which they agree to when using platforms such as these and also the privacy implications involved when they (directly or indirectly) allow their personal data to be processed.
