What can a user do if a service does not enforce their TOS?

Question

With many websites requiring a agreement to a TOS, this usually means that a user is restricted from doing certain things on the site or application, but does the user gain anything out of these agreements like standards that all users must follow?

This leads into my next question which is, does a user have a right for legal action for a service not enforcing equally?

I was trying to think of an example that didn't involve speech but I couldn't think of one so for example a blog site requires all users to not slander other users based on identity in their terms of service. Two users in this blog get into an argument and one of the users starts attacking one of the other user's identity groups. Moderators on the site deem the speech an attack but do not take any action like removing posts or banning the first user. Does the second user have any action for the lack of enforcement of the TOS on the site?

Answer 1

The Terms-of-Service are a legal contract between the user and the website (or something like that - the actual force of such a click-through contract most people don't really read is disputed in some jurisdictions). This only affects the relationship between these two legal entities. So unless the terms of service explicitly guarantee the user a slander-free environment, the user can't claim that the service provider violated their contract.

However, that doesn't mean that the user can not press any civil and criminal charges directly against the user who slandered them or people of their identity.

Answer 2

Typically a ToS is a very one sided agreement. It says things like "our company can do X, Y and Z if we feel like it and you agree not to complain". It rarely says anything like "our company promises to always do X". Indeed, they deliberately word the ToS to be voluntary for them, because otherwise you could sue them in the way you describe, and they don't want that. The exception might be certain laws regarding privacy and confidentiality of your data, if applicable. For example a doctor's office will probably have an agreement that states clear rules for them to abide with regards to your information.

ToS doesn't really introduce that much that is new, it usually affirms the rights that the company already holds by default. They are a business and can already refuse service to anyone they want*, or do with their data (that you gave them) as they want**. However, when it is clearly spelled out in the ToS, the company's intent*** is to circumvent the potentially lengthy court process for determining that it's their right anyway. If you agreed to something literally saying "we can ban you anytime we want", then it's highly unlikely that you could even initiate a lawsuit on them for banning you. Even without the ToS, if you had initiated it, you would have lost - but it would create legal costs and all sorts of headaches for the company.

*: The exception is that they cannot refuse service on the basis of a handful of categories (race, sex, etc.) - those are illegal. Anything else is fair game. If they say it's for some other reason, but you think it's really due to protected classes, then it gets complicated, but that's a different topic.

**: Except certain specific kinds of data, like medical records, that are protected by regulation.

***: There is actually skepticism that ToS'es would actually stand up in court. As I said, most of the things in your average ToS are actually just standard things that are implicit for any business, ToS just spells them out. Sometimes there's unfair terms - those might very well be thrown out. One feature of a valid contract is that it must be considered, ie. you must understand what you are signing. You could argue that with ToS'es that is often not the case - just an example. However, that's kind of academic. The website probably has access to much better legal resources than you, and could drag the case out until legal costs ruin you. So unless they harmed you in a serious way, it's not worth it to sue them anyway.

Answer 3

We should touch on the point that suing people over emotional slights experienced in online activity, is a fruitless endeavour. Further, entertaining fantasies about suing people, is hopeless, and ultimately demoralizes and weakens the thinker.

Platforms themselves have broad immunity to being sued due to the conduct of their users, under a law called DMCA Safe Harbor. This would be their first pleading, and your lawsuit would be stopped right there.

However, even if Safe Harbor didn't exist, TOS is a contract between them and you. Any valid contract has an exchange-of-value. Your value is getting to use the service. Their value is you giving away certain legal rights. (Typically things necessary to running of the forum). All this to say, TOS is you giving up rights, not taking any.

Both DMCA and TOS are designed to protect the platform. This is important because if platforms powered by user-generated content couldn't control their legal costs, nobody would create such platforms, and we wouldn't have any. All that to say, they don't protect users from each other.

Usually, your only viable of action is to sue the other user directly. (To use the word "viable" loosely). But you are limited by how much damage you can actually prove. Between two pseudonymous figures on an internet forum, it will be difficult to prove any meaningful dollar value, except unless the identity you're attacking has developed a cash value.* You might get more traction with a court order to compel or restrain certain actions, but even then, you're arguing a balance of rights - "your" reputation vs their free speech.

Maddeningly, a foreigner's free speech rights in a domestic forum will be firmly recognized by domestic courts, but your right to collect money from them will not, on the basis that they're are out of the court's jurisdiction.

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* for instance if I claimed PewDiePie was a Nazi war criminal, that is a developed brand with a lot of money at stake, so they could easily show money damages.