Market Resource: The Risk of Unclear or Imprecise Terms in Product or Service Policies

Overview:  

Companies must understand how their product/service access and use policies impact the freedom of individuals and groups to publicly voice diverse viewpoints, operate businesses and nonprofits consistent with a wide array of beliefs, and participate equally in the marketplace.  While it’s common for companies to require customers/users to comply with certain standards as a condition of using their products and services (e.g., prohibiting certain illegal or unethical practices such as using a product/service to commit fraud or violate intellectual property rights) businesses must guard against including terms that could be used to unduly restrict stakeholders’ speech or expressive activity.  

 

Relevant Policies or Practices: 

Any policy or requirement that conditions access/use of a product or service on adherence to certain standards of conduct or speech. Depending on the company and industry, this might include: 

• terms of use/service,  
• content moderation policies/guidelines,  
• e-commerce marketplace seller guidelines/standards,  
• algorithmic system use policies, 
• ad content policies, and  

• ad targeting policies, 
• risk avoidance/risk mitigation/identifying and managing social risks or impacts/social risk/systemic risk policies,  
• code of ethics,  
• human rights policy.  

 

Risk Factor(s): 

Policies that could be used to condition/restrict use of a product or service for unreasonably broad, undefined reasons.  

 

Steps to Identify and Mitigate Risk:  

Eliminate unclear or imprecise restrictions on what customers or users can say or do.  

Unclear: A term is unclear if it (1) is so vague that an individual of ordinary intelligence is forced to guess at its meaning, or (2) invites arbitrary and discriminatory enforcement due to a grant of unfettered discretion or lack of objective standards. Terms that lack clarity and grant broad discretion threaten free speech because they have the potential to become a means of suppressing particular viewpoints.  

Imprecise: A term is imprecise if it fails to narrowly target the specific harmful activity it is designed to prohibit. Imprecise terms imperil free speech because they risk prohibiting substantial amounts of speech beyond the harmful activity that the regulation aims to prohibit.   

Avoiding unclear and imprecise language will significantly reduce the risk of enforcing terms of service (TOS), content moderation policies, and other similar policies in a manner that undermines freedom of expression. The table below provides guidance to help companies avoid terms that pose a serious risk of suppressing speech and/or expressive activity.   
  

Good TOS/Content Policy	Bad TOS/Content Policy
Uses precise terms with common meanings known to average persons.   Uses precise terms that target the specific harmful activity.    Avoids subjective terms that could apply to a customer’s/seller’s/ creator’s/user’s religious or ideological views on matters of public concern.	Uses terms that would require average person to guess at their meaning.   Uses imprecise terms that allow speech that is not the target of the policy to be swept up in its prohibition.   Uses subjective terms that could apply to a customer’s/seller’s/creator’s/ user’s religious or ideological views on matters of public concern.

 

TOS/Content Policy Examples (next page)

Key:    Text with strikethrough and highlighted in yellow = Original verbiage that is unclear and/or imprecise.      Text highlighted in green = Verbiage added or changed to improve or clarify original text.    Text NOT highlighted and without strikethrough = Acceptable verbiage.                                = Policy contains unacceptable verbiage.    = Acceptable policy.

 

We don’t sell certain content including content that we determine is hate speech, promotes the abuse or sexual exploitation of children, contains pornography, glorifies rape or pedophilia, or advocates terrorism, or other material we deem inappropriate or offensive.   https://www.amazon.com/gp/help/customer/display.html?nodeId=201995150

You may not use the PayPal service for activities that:   …. 2. relate to transactions involving … (f) the promotion of hate, violence, racial or other forms of discriminatory conduct, other forms of intolerance that is discriminatory or the financial exploitation of a crime, ….   https://www.paypal.com/us/webapps/mpp/ua/acceptableuse-full

Code of Conduct.            a. By agreeing to these Terms, you’re agreeing that, when using the Services, you will follow these rules:    …. vii. Don’t engage in activity that is harmful to you, the Services or others (e.g., transmitting viruses, stalking, posting terrorist or violent extremist content, communicating hate speech, or advocating violence against others).   https://www.microsoft.com/en-us/servicesagreement#serviceslist

We prohibit content that makes violent threats against an identifiable target. Violent threats are declarative statements of intent to inflict injuries that would result in serious and lasting bodily harm, where an individual could die or be significantly injured, e.g., “I will kill you.”    https://help.twitter.com/en/rules-and-policies/hateful-conduct-policy

Dehumanizing individuals or groups by calling them subhuman, comparing them to animals, insects, pests, disease, or any other non-human entity.    https://support.google.com/youtube/answer/2801939?hl=en#zippy=%2Cother-types-of-content-that-violates-this-policy

 

 

The below table includes terms that are inherently subjective and prone to overbroad application, such that any use of these terms in a company’s policies, regardless of definition, poses a significant danger to customer’s/seller’s/creator’s/user’s freedom of expression and freedom of religion or belief (FoRB).   

Unclear and Imprecise Terms 

Anti-social	Improper
Bias	*Inaccurate
Bigotry	Inappropriate
Caricatures	Incendiary
Conspiracy theor(y/ies)	Inflammatory
Controversial	Infringing
Dangerous speech	Insensitive
Denigrating	Indecent
Degrading	Intolerance/Intolerant
Demeaning	Mal-information
Derogatory	Mean-spirited
Discriminatory (speech)	Misinformation
Disinformation	*Not credible
Disrespectful	Objectionable
Discourteous	Offensive
Ethnically offensive	Over the line
Extrem (e/ism/ist)	Prejudice/Prejudicial
Excessive	Public Interest
Fake News	*Questionable
*False/Fraudulent	Racist
*Generally accepted practices of the Internet community	Ridicule
Gratuitous	Unacceptable
Gross exaggeration	*Unsubstantiated claims
Good taste	Sensibilit(y/ies)
Hate group	Stereotypes
Hate speech	**Social/reputational risk/harm
Hateful/Hateful conduct	**Brand damage/brand damaging activities
Harm	Violates or harms public order or morals
Humiliate

*These terms may be acceptable if they refer to commercial activity or describe product/service offerings.  

**Social risk and brand damage policies are not per se unclear or imprecise, however they can be used to restrict expression if not carefully defined.  

 

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