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Generally speaking, the TOS of social media platforms share certain common features.

They do not give the user the right to any "due process." If the platform wishes to cancel, block or suspend the user, they can do so with impunity. The platform can exercise its sole discretion and the user has no right to due process or a fair hearing.

Even worse, these social media platforms routinely engage in the practice of so-called "shadow banning." This practice effectively cuts off users from accessing the platform with an elaborate ruse and conspiracy designed to deceive the user into believing they still are using the platform normally. But, in fact, all their posts are disappeared into the either by the platform to intentionally trick the user into wasting their time creating more posts that go nowhere.

My hypothesis is that these common practices (deceptive shadow banning ruse conspiracy, lack of due process, no right to any appeal or fair hearing and lack of mutuality -- the platform can do whatever they want with autonomous impunity and the user can't even register a complaint) combined with the plain language of the TOS of these social media platforms that grant complete autonomous impunity to the platform constitutes an ILLUSORY CONTRACT and, therefore, renders the TOS invalid in their entirety.

Does my hypothesis have any merit?

Edit

I am using the following definition of illusory contract:

A promise that is unenforceable due to indefiniteness or lack of mutuality, where only one side is bound to perform.

The TOS I am referencing seem to meet all the requirements to me.

  1. They lack mutuality.

  2. Only one side is bound to perform.

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    Let's assume that it is invalid... What then? You are not owed an access to the services offered by a website.
    – xngtng
    Commented Feb 14, 2023 at 10:10
  • It may be useful to understand that you are not the customer, you are the product. They shape their product to make it attractive to their customers, the advertisers. Once you adjust your paradigm it helps you realize why they truly don’t care about the users. Commented Feb 14, 2023 at 15:37
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    @xngtng: If the TOS are invalid, then we are all free to ignore them. Your observation that we are not owed any access is self-evident and presumed by the question. Commented Feb 15, 2023 at 0:13
  • @AlexanneSenger You are free to ignore it regardless; for most users, the validity of most TOS, if they even qualify as a contract, is not relevant. If it is valid and you ignore it, the company can do whatever it stated in the TOS. If it is invalid, the company can do whatever it wants within the legal limit whether you ignore it or not and whether the TOS provided that or not (since it is invalid). For users of a free service, there is no enforceable right (outside specific statutory regimes e.g. data protection). I see that Jen already posted an answer about this.
    – xngtng
    Commented Feb 15, 2023 at 9:13

3 Answers 3

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No

Contracts are not bound by due process. Due process is a rule of how a lawsuit has to be handled, not how a contract is to be handled. All the Due Process clauses in the US constitution simply don't apply. The only things that apply are the contract language, and the underlying/overwriting laws.

If your contract stipulates that it is terminated by winning a coin flip against the other party, that's fine. If it stipulates, that you have to find 15 people supporting you in terminating the contract, that's fine. If it states that the other party can terminate for any and all reasons, including no reason, that's what the contract says, and fine. The contract would have to establish that you actually have a process, and how it is handled.

My hypothesis is that these common practices combined with the plain language of the TOS of these social media platforms that grant complete autonomous impunity to the platform[...]

This part is correct. They have the complete impunity because of how the contract is written. However, that does not make the contract illusory: you can decide not to agree to it and not go to the place, so it is mutual acceptance. Both sides are bound to perform something until the contract is terminated.

An illusory contract would be that Alice gets 2000 USD for nothing (only one side performs). But both sides perform. The contract is to follow the TOS in exchange for site access. Both sides offer something: access in exchange for adherence to rules.

The claim of non-mutuality is frivolous: If you claim "I don't agree to the TOS and contract", you can't at the same time get the benefits of the contract either: you signed the contract to follow the TOS in exchange to access the site, and if you don't want to follow the TOS, you have to terminate the contract and can't access the site. You can't eat your cake and have it too.

Also, there is a severability clause, which is valid: even if a clause would be illegal, it would be replaced by the closest legal clause, overwritten by the legal minimum, or removed, whichever is the least impact. The rest of the TOS is untouched and fully valid.

Your conclusion is wrong and meritless.

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Terms of service are often not contractual (although many are, particularly when associated with payments). They often merely state the conditions under which the provider is allowing you to use their service (akin to a licence, but not even necessarily a licence) or just stating transparently what behaviour they expect from you, what they will do with your data, and what actions they might take if you don't follow their expectations.

In that sense, it is not meaningful to ask if a TOS is "enforceable" (in that the provider could deny a person access) because the provider simply retains the proprietary rights to control access to its product. That power does not come from the TOS.

That power can be constrained by some contractual duty to the user (e.g. via a payment) or statutory duty (e.g. in relation to data protection).

Another implication of a TOS not being contractual is that neither you nor the provider could sue the other for breach of contract.

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Are social media TOS invalid because lack of due process and mutuality creates an unenforceable illusory contract?

No.

The American Bar Association has a nice distillation of the state of the law with respect to terms of service, and I reproduce the most relevant portions of that analysis below:

Are my terms and conditions enforceable?

Courts are now regularly enforcing so-called "click wrap" agreements, where a user's assent to the terms and conditions posted on a website is rendered by clicking on a button that says "I agree" or "yes". When these agreements are upheld, users are deemed bound by the terms in the same way that they would be bound by a signed contract, whether or not they actually read the agreement, so long as there was an adequate opportunity to do so. Requiring the user to expressly agree or disagree with the terms and conditions posted on a website goes a long way to ensuring that an enforceable contract was created. Whether posted terms and conditions that do not require the user to click an "I agree" button can create an enforceable contract. is less certain. (See "Can I simply post terms and conditions?")

Yet, even where an electronic agreement requires express assent, there are still reasons why a court may not enforce it. A court will consider whether the terms were presented in a way that provided reasonable notice, i.e., Was the typeface legible? Was the full text of the agreement easy to find? Was the text, even if large, easy to understand? Another element of adequate notice is whether the user was made reasonably aware that it was agreeing to a contract, i.e., was the button meant to indicate assent designated as "I agree" or "Yes", or in an ambiguous manner, such as "submit", "continue" or "show me the lenders?"

To increase the prospects of enforcement, website terms and conditions, like all standard form contracts, should be drafted in a clear manner, without technical jargon and excessive legalese. Thus, care should be taken that terms and conditions are not unduly long by virtue of irrelevant clauses or extraneous boilerplate. They should also be presented as legally-binding terms, and not mixed with marketing messages, and they should be scoured for inconsistencies with other statements made on the site. It is also important that the site allows the user adequate time to review to terms, both when first presented with them and for later reference. (For other factors relating to the presentation of terms and conditions, see "Are electronic contracts enforceable?" and "Can I simply post terms and conditions on my site?")

Terms and conditions should be capable of being retained by the user in electronic or printed form, if they are not being sent directly to the user by another means, such as by mail or fax. Some industries, such as financial services, are required to provide copies of contracts to the user in hard-copy form. In addition, as to electronic transactions generally, Section 8 of the Uniform Electronic Transactions Act, adopted in some form in nearly all 50 states ("UETA"), prohibits a website proprietor from inhibiting a user's ability to store or print the contractual terms if the parties have agreed to contract electronically and the law requires that the user be provided information in writing. One might expect the same requirement in other jurisdictions even without UETA. Under Section 101(d)(1)(B) of the Electronic Signatures In Global and National Commerce Act ("E-Sign") terms and conditions must remain available to the user, in a form capable of reproduction for later reference, if the applicable law requires that a record be retained regarding the transaction.

In order to avoid errors that result from typos or improper navigation of the site, the user should be able to view and approve an order summary or confirmation screen prior to the placement of an on-line order. In fact, UETA Section 10(2), gives an individual the right to rescind a website transaction resulting from his or her error if there was no opportunity to correct it, assuming that the individual promptly notifies the seller of the error, takes reasonable steps to return or destroy any product or service received, and has not used any benefits provided.

Finally, an issue that underlies all standard form consumer contracts, which are presented on a "take it or leave it basis," is whether the terms are so unfavorable as to be considered "unconscionable" and, therefore, unenforceable, regardless of whether the customer has manifested his or her assent to them. (See "What provisions are not enforceable?")

A 2021 article from the New York Times explains that for the most part, Terms of Service are enforceable and that any regulation of limitation of them will require regulatory or legislative intervention.

As noted in another answer, "due process" is not something that a private business, as opposed to a governmental entity, is required to afford you.

A ToS is generally not invalidated either on the ground of lack of mutuality or on the ground that only one side is bound to perform (and the website with a ToS is usually providing something of value to the user, so it isn't truly one sided).

One fruitful way to understand a ToS is that it legally defines the intangible product that the website or online service is providing.

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