Your terms of service don’t exist

Recently some guy got an inactive Tumblr username, ‘pitchfork’, jerked from him by Tumblr and given to Pitchfork Music. Pitchfork handled the incident with exemplary style. Nothing worth commenting on – until some other guy wrote that this was a non-story, because Tumblr reserved the right to do this in its terms of service.

Less than a year ago I would’ve been offering to fist bump that guy, because I do think that people should be responsible for (and actually read) the agreements they agree to, and that if an action’s permitted in the terms that person agreed to, that person doesn’t have a lot of cause to complain about it. However, since then I’ve learned that what I think is totally, completely irrelevant – things simply don’t work that way.

In the real world, your terms of service don’t exist. Neither does your privacy policy. Your users don’t read them and they don’t care about them. Yes, you do have to have them, in case someone particularly litigious decides to sue you, but they don’t make your website exempt from the unwritten, unarticulated, shifting set of expectations of what a user’s rights should be – and if you violate any of these expectations, the resulting PR backlash for your company can make you wish someone just up and quietly sued you instead.

The recent Google Buzz backlash is a terrific example of this in action – it wasn’t because Google did anything against anything in their terms of service or privacy policy, but because they inadvertently violated this unwritten set of community norms. I feel a bit sorry for Google, because I suspect they internally tested the hell out of Buzz before releasing it – but because Google is a bit of a ‘special’ place, very few of their own employees shared the same norms as their community of users. (Is Google even capable of successfully testing a social product internally? Are any of us?)

Ah, product design is fun sometimes.