Version Control: The Achilles Heel of Online Contracting

When legal teams think through the enforceability of their online terms, the focus tends to be on screen design and record-keeping. A well designed screen is crucial for putting users on constructive notice that there is an online agreement and that they are agreeing to it by taking some action. Record-keeping is essential for proving that a certain user visited said screen and took the relevant action. 

But even if your screen puts users on notice of the terms and you keep records of user acceptance of those terms, a court may still render your agreement unenforceable if you are not also mindful of version control. Version control refers to maintaining back end records for user assent to modified terms as well as historical records of screen designs as you change the screen design over time.

Here are three examples of companies that had negative outcomes in court due to a lack of proper version control.

How better version control could have helped Facebook in the Cambridge Analytica scandal

Facebook encountered version control issues several years ago in light of the Cambridge Analytica scandal. In In re Facebook, Inc. Consumer Privacy User Profile Litigation, Facebook argued that users consented to having their personal data shared with third parties, as outlined in Facebook’s terms.

The court noted that if “Facebook users consented to the alleged misconduct, this would indeed require dismissal of virtually the entire case.” Facebook required users to agree to a set of terms upon creating a Facebook account, but the language about sharing data with third parties didn’t appear in Facebook’s terms until 2009.

As a result, all users that created a Facebook account after 2009 had consented to Facebook’s sharing practices upon account creation while users that created a Facebook account before 2009 did not. Facebook argued that users were bound by the terms “going forward, even when the terms changed.” But the court disagreed and found that users who created accounts prior to 2009 did not consent to the information sharing practices. 

If Facebook had practiced better version control, then this case could have had a different outcome.

Eventbrite lost until they could provide proof of exact version of terms to court

Eventbrite similarly faced version control issues when trying to enforce their terms in 2020. Eventbrite notified users via sign-in-wrap that they agreed to Eventbrite’s terms by signing up for an Eventbrite account, and again by making purchases on the site.

Eventbrite was initially unable to provide the court with the exact versions of the terms consumers would have agreed to during the relevant time period, and Eventbrite wasn’t able to show the court the exact screen that consumers would have seen. Instead, Eventbrite offered screenshots of the current screen design as it stands today, as well as different versions of the terms that were not in effect during the relevant time period.

Because Eventbrite wasn’t able to show the court the exact screen consumers saw, nor the exact version of the terms consumers allegedly agreed to during the relevant time period, the original court declined to enforce Eventbrite’s terms.

In 2021, however, Eventbrite filed a renewed motion to enforce the terms. This time, Eventbrite was able to provide screenshots of the exact screen the users at issue would have seen when purchasing tickets on the site as well as the versions of the terms the users agreed to. The screenshots indicated that users at issue were put on notice of the terms, and the court agreed to enforce Eventbrite’s terms as a result.

Lyft provided evidence of versioning from start…and won

Lyft experienced the importance of version control recently as well when trying to enforce their terms. Lyft required drivers to agree to the terms of service when signing up to drive for the app. Lyft periodically updated the terms, and drivers were required to accept the modified terms the next time they signed into the app before they could continue offering rides through Lyft’s app.

Unlike Facebook and Eventbrite, Lyft was able to provide evidence of versioning from the start. Lyft brought forth evidence of the different versions of the terms over the relevant time period as well as screenshots of what the user would have seen. As a result, the court was able to determine which versions of the terms the user at issue agreed to.

In summary

Version control is crucial to keeping your business safe. The businesses that have been successful in court were able to prove which version of their agreements are live at any given time. Companies that keep poor records tend to be far less successful.

Learn more in our Clickwrap Litigation Trends: 2021 Report.