If you're launching a new product or service, automatically enrolling customers and partners and only providing a confusing opt-out isn't the best way to protect yourself from legal risk. The world's tech titan might be about to find that out the hard way.
At WWDC, Apple announced plans for a news app as part of the new iOS 9 mobile platform. But without a newsroom or any of their own content, Apple planned to populate the app with RSS feeds of other news-gathering sites and blogs across the web. Of course, that requires some sort of online contractual agreement with each of these providers, and the company chose an interesting approach to get the mutual assent necessary to use the third-party content. The company sent out a unsolicited e-mail to content providers, noting that they'd be included in the app unless they specifically said otherwise. From the BBC:
An unsolicited email from Apple inviting publishers to join the service presumes acceptance of the terms, unless they actively opt out. It requires them to cover Apple if legal issues arise, among other things.
The terms read: "If we receive a legal claim about your RSS content, we will tell you so that you can resolve the issue, including indemnifying Apple if Apple is included in the claim."
It's very likely that Apple's choice to automatically include content providers in the program unless they opt out won't meet the standard to create a binding legal agreement. It's certainly not a best practice to require consumers to opt-out of a new service or program, and it could be difficult to for Apple to even prove who has or has not viewed or received the e-mail. That leaves the company open to lose a suit from content creators angry that Apple gets to reap the ad revenue off their reporting, despite the indemnity clause provided in the agreement.
When starting a new program or service -- especially one of this magnitude, it's best to always get an active manifestation of assent by requiring a user or partner to click a checkbox, initial a form, or another method that requires them to note that they have read, understood, and agreed to your terms. Learn here how PactSafe is helping corporate lawyers sleep easier at night knowing that their terms of service and use are displayed and accepted in the registration process.