ISMA: Are Social Media Terms of Service Enforceable in Australia?

You know what it’s like … Gripped by bright and shiny object syndrome, you drop in your email address, add a password and click “sign up”.

This brand new platform is the future. Everyone will be here – but for now, it’s you. The early adopter. Rule breaker and innovation maker.

In a couple of clicks you’ve signed up. Signed in. Checked out and shared with friends.

But what, exactly, have you signed up for?

If you are like everyone else, you’ll have bypassed the “terms and conditions”, and happily clicked the checkbox hovering there on the webpage. Who has time for that palaver? After all, there are budgets, deadlines and dinner dates to meet. And you can trust AppleFaceGoogleSoft, right?

But every click, sign up and social media account comes with pages of legal waffle designed to simultaneously numb the user and dull the senses. At the same time, they bind users into enforceable provisions that can include the text you write, photos you take and the data you reveal about yourself (knowingly or unknowingly). “Fine” you might say as an individual – but what happens if you are a business? What risks are you blithely accepting?


“The terms and conditions from the Apple website took me an hour – just to print out, not to read”, says Sara Delpopolo, Axis Legal principal and lawyer.

As a lawyer, Sara , has spent years navigating the tortuous legal and intellectual property issues resulting from the rise of social media channels. And yet, until recently, there has been precious little savvy legal advice to be had.

After writing a book on the subject, Sara realised that more was needed.

A year or so later, and Sara is standing on stage at the Museum of Contemporary Art, Sydney, launching the International Social Media Association (ISMA). With a goal of harmonising laws across jurisdictions, ISMA is putting together positioning papers and growing its membership of leading digital law firms.

In a recent Echo Junction podcast, Sara explained the focus of ISMA and the challenges and legal dangers of social media. It’s well worth a listen.

But it is ISMA’s Terms of Service Whitepaper that should draw your attention. In the first whitepaper to be released by the association, it is shown that the Terms of Service the ten most prominent social media platforms have significant shortcomings under Australian law. “Most Australians do not realise that some terms are completely unenforceable. In short, accepting the platforms’ terms does not mean throwing your rights away”.

“This Paper is a crucial step by ISMA towards achieving what should be expected of the online legal landscape – to protect Australian social media users and assist businesses. Social media is not just about being ‘sociable’; it’s about how society interacts on digital platforms internationally.” Ms Delpopolo explains. The full whitepaper is available to ISMA members.