Destined to Collide? Social Media Contracts in the U.S. and China

94 Pages Posted: 26 Jan 2016 Last revised: 11 Jan 2017

See all articles by Michael L. Rustad

Michael L. Rustad

Suffolk University Law School

Thomas H. Koenig

Northeastern University

Wenzhuo Liu

Independent

Date Written: 2016

Abstract

Part I of this article is the first empirical examination of the Chinese social media universe. We develop a typology of twenty-five of China’s most popular social media sites and compare terms of use from these social media with their U.S. counterparts. Part II compares the contracting practices of Facebook, Twitter, and Match.com to their Chinese equivalents. The core finding is that U.S. social media providers use terms of use to reduce their liability and protect their rights to the maximum. China social media providers rarely foreclose consumer rights and remedies in their terms of use but do include clauses that forbid user conduct that incites racial, ethnic, or religious disharmony or otherwise harms national stability. Part III contrasts the terms of use of twenty-five of America’s largest and most popular social media sites’ terms of use with terms devised by the twenty-five largest Chinese social media providers. U.S. social media sites construct fine print boilerplate that include one-sided warranty disclaimers, caps on damages, mandatory arbitration and anti-class action waivers – provisions that are rarely found in the Chinese sites. Chinese social media terms of use frequently violate Western rights to free expression. We explore the doctrinal basis underlying these diametrically opposed mass-market agreements by comparing U.S. to Chinese law. The largest social media providers in both the United States and China have global ambitions and thus must devise user agreements that harmonize with the laws and policies of other nations if they are to avoid serious legal and cultural clashes.

Suggested Citation

Rustad, Michael L. and Koenig, Thomas H. and Liu, Wenzhuo, Destined to Collide? Social Media Contracts in the U.S. and China (2016). University of Pennsylvania Journal of International Law, Vol. 37, p. 647, 2016, Suffolk University Law School Research Paper, No. 16-1, Available at SSRN: https://ssrn.com/abstract=2719929

Michael L. Rustad (Contact Author)

Suffolk University Law School ( email )

120 Tremont Street
Boston, MA 02108-4977
United States

Thomas H. Koenig

Northeastern University ( email )

220 B RP
Boston, MA 02115
United States

Wenzhuo Liu

Independent ( email )

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