For some of us, tweeting is more than just updating our friends as to what we put on our turkey sandwiches for lunch or how far we’re forced to walk from our cars to Starbucks. Twitter is a powerful tool, and amongst other things, can be used as a medium for business negotiation. And what else is more centric to business than contracts?
Most of us make contracts on a daily basis without even knowing it. If that mooching friend of yours says, “Can I bum a cigarette, and I’ll get you back when I buy my next pack,” she’s making an offer. If you give in once again to her moochiness, you just accepted her offer and made a contract. It’s that easy.
In social media, many of the offers that are made, accepted or rejected are communicated by way of the tools we use so very often, such as Twitter, Facebook, LinkedIn, etc. Just because it involves a keyboard and Twitter, not pen and paper, does not mean that the deals you make aren’t valid.
So, as you probably know by now if you are reading this post, there are but three types of tweets: general tweets, tweets to others that can be seen by all, and direct messages visible only to parties between whom the messages are being exchanged. I will briefly highlight how each of these forms can be construed as an offer or acceptance.
Generally speaking, a tweet that is directed to no one cannot be construed as an offer. In contracts, there are basically three broad categories under which contracts fall: sale of goods, sale of property, and services.
While the ins and outs of how offers are made and accepted differ between these three categories, all you need to know is that there’s really only one way a general tweet to the world can be construed as an offer, and that is if you, in a clear, definite and explicit manner, leaving nothing open to further negotiation, make known your position to render service or exchange goods. This is akin to an advertisement, which in most cases is not binding for the reasons stated previously.
If you tweet, “selling my unlocked iPhone 3Gs for cheap because #AT&T blows, DM me if interested,” you haven’t made an offer that someone can just accept, forever locking you into selling your iPhone. You’ve merely advertised your intent to negotiate or barter. However, if you were to say, “I have 1 iPhone 3GS new, still in original packaging, and I will sell for $99 U.S. to the first person who DMs me before 4pm” you have made an offer. The first person to comply with that offer in accordance with your terms has rightfully accepted, and you can kiss your iPhone goodbye (at least legally).
Point is, you don’t really have to worry about your general tweets being construed as binding offers unless you are so clear that nothing would be left open to negotiation if someone complied with your terms.
TWEETS TO OTHERS/DIRECT MESSAGING:
This is where the bulk of your contracting is likely to take place. Unlike general tweets, when you extend an offer to someone or a group of people specifically, your offer is significantly more viable, and can be taken more seriously by the person(s) to whom you extend your tweet. We’re no longer in the realm of advertisements, kiddies.
Let’s say you notice that a fellow blogger or social media personality tweet that she really could use a hand improving her site design. Proud of yourself for remembering that her tweet doesn’t constitute an offer, you reply “hey @_____, I like some of your design elements; check out some of my work (insert link to work).”
If all goes to plan, for argument’s sake let’s say she sends you a direct message saying, “Let’s talk shop…what would your rate be for the redesign?” This, too, is not an offer. It functions more as a price inquiry. If you respond in a way that reflects your intent to render your services to her, perhaps saying, “I think I could do the whole project for $1,000 start to finish,” that IS an offer.
At this point, things get a little sticky with the law. Though there are quite a few rules on the issue, unless you revoke the offer directly or indirectly, she then has the right to accept your offer. The exact wording isn’t so important, so long as she makes clear her intent to reasonably accept your offer. If she does, you have a contract.
If you’re thinking that you can play off your offer and her acceptance like it was meant to be a joke, or that you weren’t serious, think again: in the good old days, the “meeting of the minds,” or each party’s intent to contract mattered. Today, the communications you exchange with her are as good as ink on the paper with signatures at the bottom, according to the objective theory of contracts.
The examples provided aren’t to be taken as God’s truth, and the only situation in which one might contract with another. You could sell off 500 acres of land in the same manner, or trade a mold of Robert Plant’s unmentionables for an autographed poster of Lady Gaga. The courts won’t care how absurd you think the exchange might be. What counts is that one person offers, the other accepts, and both parties offer a consideration (I give you the Robert Plant mold, you give me your signed poster).
With all that swirling around in your noggin, here are a couple quick things to keep in mind as you go about your lives on Twitter (or anywhere else for that matter):
1. A general tweet may usually not be construed as an offer; rather, it tends to function like an advertisement, unless the terms are so clear, definite and explicit that nothing is left open to negotiation.
2. Tweets are entirely viable means for communicating an intent to buy or sell goods or property, or render services; if an offer is made by one person, and accepted by another, then you probably have a legally binding contract that can be enforced. If either of you breaches it, the non-breaching party has the right to file a suit against you.
3. Generally speaking, once a contract has been formed, if one of you wants out….tough luck. Your unspoken intent won’t matter where there are actual expressions reflecting your intent to contract.
4. Contract law isn’t intended to stick it to the breaching party, meaning you aren’t going to get punitive (punishment) damages for someone breaching a contract. But, in the case of our website designer above, if the offeree (person who may accept the offer) can demonstrate that the next highest bid for a job like that you would have done would cost $1800, the court might very well order you to pay the difference.
5. Do yourself a favor and act with integrity and character. Nobody wants to endure a legal battle. Don’t take negotiations in a joking manner, and honor your word. Because unless you’re clinically crazy or under the age of 18, the court just might enforce that contract you didn’t take seriously, and then you’re out whatever damages you’ve caused to the person with whom you contracted…and a reputation.
Triston McIntyre is a former Uptown Uncorked associate, now studying law in Maryland. He may be popping in from time to time to share what he learns with us as relates to social media. You can find out more about him under the Company menu above.
Facebook has certainly come a long way since its baby days, hasn’t it? As one of the first college students to adopt the social networking platform, I’m all smiles when Facebook rolls out new changes. At the moment Facebook is promoting its upcoming home page changes which will allow users to post content directly from the main page, bypassing the need to jump to one’s own profile. I’m all for it.
And the most recent set of changes, namely the “like” function along with the tabbed news feeds, have certainly taken the social networking site to a new level. A recent study by The Economist, as relayed by Overstated.net, suggests that Facebook is helping users make and build relationships that might otherwise not be built and maintained without the site. Certainly, there’s a comfort level with and value to “friending” someone on Facebook, and then communicating and building those relationships.
But being able to “creep” friends of friends’ photos, send harmless messages to users you don’t know, and meet new people doesn’t necessarily mean you’re building real and lasting relationships. In fact, in my own observations I’ve noticed that many college students are more than comfortable accepting or sending friend requests to common acquaintances for the purposes of staying hooked in to what’s happening in various social circles, but when it comes down to spending time together in public…well, it isn’t quite as fun and social as it is on Facebook.
That isn’t to say that “social” relationships can’t translate to the real world. Far from it, I know first hand that all variety of connections and relationships can turn into real relationships. However, I think it’s a bit of a stretch to say thatthe new tools of Facebook, which increase visibility, transparency and connectivity are directly causing real relationships to sprout up like dandelions.
Also, it’s probably time to dispel notions that Facebook is somehow cutting in on the good times had by Twitter and FriendFeed. Yes, Facebook has replicated some of the functionality and environment of each respective platform. But when push comes to shove, I think most folks will readily admit that Facebook is a staple of their social networking, and more importantly, that it isn’t the same thing as using the other two platforms. Facebook is also not stealing users from the other platforms. Like it or not, most folks use Facebook, and if they use other platforms, they interact in different ways on each.
Facebook can’t be Twitter, and it can’t be FriendFeed. I like to think that cultivating an involvement in social networking leads users to adopt additional, different platforms to fit their individual styles and desires. I’m skeptical of claims that users might be starting out on Twitter only to drop their accounts once they discover the holy grail that is Facebook.
Make your friends and enjoy your social networks. Just don’t go banking on some study which suggests that the ability to stalk some random person’s photos will make them your bff.
Facebook has been in quite the pickle recently, hasn’t it? In trying to achieve transparency, it let users know about what was a technically small change in the legalese of the Terms of Service, and the uproar from privacy groups and FaceBook users was huge.
Now we’re at a very interesting juncture in the future of the largest social networking site. Facebook has reverted to its old Terms of Service and laid out drafts of what can most be likened to a constitution and a bill of rights. One part is “Statement of Rights and Responsibilities” and the other is “Facebook Principles.” Both are available for viewing on “Town Halls,” which are groups set up for users to comment on the proposed changes.
The part that is particularly interesting, aside from the fact that Facebook is almost directly paralleling the two most important legal documents in America, the Constitution and the Bill of Rights, is that the comments made in the Town Halls will essentially be considered “votes” for or against the changes, which, according to CNN, will be evaluated at the end of March, and will determine the direction the documents take. So Facebook users have the unique opportunity to vote, or more accurately, weigh in on the direction Facebook changes.
Part two of the peculiarity of this decision is that Facebook is making a concerted effort to reformat the Terms of Service to eliminate legalese: in effect, make everything clear to users who don’t have law degrees. That’s another attempt to gain transparency, and for that, I applaud Facebook. Specifically I commend the attempt because, by eliminating legalese, Facebook is, to some degree, opening itself up to legal loopholes. The legal system isn’t abandoning legalese just because Facebook does, and the new documents are vulnerable because they are legally vague. But I still maintain that it is an olive branch of good faith to the user community that will do some good.
The degree to which user comments will actually affect the changes to both documents is yet to be seen. Only a small fraction of the Facebook user community actually joined the Town Halls, numbered in the thousands, and from what I read, the feedback was far from reflective and constructive.
There was a really good reason why Hamilton, Jefferson, Madison and a few select others were the only ones responsible for drafting the Constitution, and why the ratification was done largely in secret. If we in America had to redraft a Constitution today, I doubt it would happen. Imagine if every person were allowed to share their opinion, and their opinion had to be weighed! Perhaps the whole situation will work itself out as it tends to in American politics: the few who are genuinely interested will weigh in, their opinions will be represented, and everyone else who didn’t care enough to contribute will bemoan the changes if the media tells them they should be upset.
CNN notes that Facebook will be creating a sort of “user council,” which will participate in the decisions made by Facebook in the future. Sounds a bit like Congress, doesn’t it? No word yet as to who will be selected for the proposed council. I’m hoping that the council will be much like the Senate is now….comprised of many members, none of which can directly control the future of Facebook. I think it would be a mistake to make the council up of JUST leading internet personalities, such as leaders of privacy groups. There should be an equal distribution of every day users to experts…if not a majority of Facebook versions of “Joe the Plumber.”
Personally, I like the idea of copying the format of the American government. Hopefully Facebook won’t get bloated with bureaucracy and be split between council members looking to propagate their own agendas like our beloved Congress, but in theory, it could work. The jury is still out as to whether the “votes” being cast will actually be weighed in the direction of the new documents. Props to Facebook for taking a leap of faith in being transparent to its community.
2008 was a big year. An economic recession, presidential election and wild weather certainly made the year exciting; for tech and media, we saw the continued adoption of smartphones, the advent of online mobile application stores, the success of Twitter, and an increase in the use of social media tools by both young and old.
Twitter and Friendfeed: two social micro-blogging platforms which people continue to compare and contrast, like both locked in a duel to death with one another. Recently, Dave Winer wrote a piece on the two platforms, likening them to the early computing platforms of Macs versus PCs. Dave suggests that Twitter is like the Mac platform: easy to use and adopt, but not as open or capable as a “PC” platform.
While I see the validity of this comparison, I’m forced to reflect on current trends in personal computing. While Windows might be a very open platform (arguably more open than OS X), the ease-of-use and attractive simplicity of Macs is winning over consumers every day. Similarly, though the iPhone has a rather closed GUI and platform, it is possibly the most popular smartphone on the market, even over competitors offering Windows or Linux-based operating systems boasting “open” operating systems.