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AirBnB's terms of service

AirBnB’s Terms of Service: What Are You Agreeing To?

By John DiGiacomo

How will AirBnB’s terms of service change affect users? Let’s be honest: very few people actually read the terms of service. Even the select few that try to be diligent and read them probably don’t understand 90% of the language used. This makes it nearly impossible to understand what the user is actually agreeing to.

AirBnB recently sent out a notice to make users aware that they were making changes to their terms of service agreement. These new changes could have major implications for users, especially for users who have had issues with the service and wish to seek legal action. The new terms will take effect beginning in May.

Changes to AirBnB’s Terms of Service

The top three changes most users will likely want to be aware of are:

  1. Data collection practices,
  2. Criminal background checks, and
  3. Forced arbitration policies

One new provision in AirBnB’s terms of service states that AirBnB can share personal information. AirBnB can now share personal information of its users with affiliates and third parties for the purposes of targeted advertising. Given the recent data breach events from third-party vendors, sharing of personal information should raise some concerns.

As a result of user complaints and concerns, AirBnB will now be able to cross-reference a user’s personal information with public and non-public databases and use background checks. This can include “public records of criminal convictions.”

While there are certainly benefits to AirBnB performing checks for a user’s criminal record, users may not be aware the checks are being performed. The wording of the terms of service specifically ensures that AirBnB is able to use personal information to obtain these reports without further notification to the user. If AirBnB discovers information in the course of the check that the user should legally be informed of, AirBnB will pass on this information; otherwise, they are under no obligation to disclose what they learn about their users.

Mandatory Arbitration?

The mandatory arbitration policies allow AirBnB to keep conflicts out of the court system. AirBnB is also preventing the use of class-action lawsuits and class-wide arbitration against it. This means users will have to use individual arbitration. Since the decision is binding, there’s no recourse to the court system.

One challenge with arbitration is that a past decision by an arbitrator isn’t binding on future arbitration. There’s no precedent setting element like there is in the court system. One user goes through arbitration and gets one outcome, another user fighting the same issue could have a different result.

However, the method that AirBnB users use to agree to the changes could impact AirBnB’s ability to enforce the changes. According to Jeffrey Norton, a lawyer in New York, an arbitration clause can only be enforceable if the user actually agrees to it in a meaningful way.

Do You Agree?

There are two different systems commonly used by applications and service providers. Those include “clickwrap agreements” and “browsewrap agreements”. A clickwrap agreement works by making a user actively click an “I Agree” box. With browsewrap agreements, the terms are available via a link and aren’t physically brought to the attention of the user. Courts are more likely to enforce clickwrap agreements over browsewrap agreements. This is certainly something to keep in mind when using AirBnB or any other service mandating arbitration as the only means for solving disputes.

For more information regarding AirBnB’s terms of service or how to structure your company’s terms of service, contact Revision Legal’s Internet attorneys. Use the form on this page, or by calling 855-473-8474.

Image credit to Flickr user Open Grid Schedule / Grid Engine

Editors Note: this article was originally posted in May, 2016, and has been updated for clarity and comprehensiveness.

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