By Carolina Martínez Elebi, associate researcher at OBSERVACOM.
In effect since November 15, X’s new terms of service reflect a differentiated treatment between users from Europe and Latin America. For the former, there is greater transparency and rights, while Latin American citizens are subject to more arbitrary rules.
Since November 15, the new terms of service of X have been in force for all people who use this platform, something that the company had already announced a month in advance.
One of the novelties that this update brings has to do with the differences that can be found between the contract established for users who live within the European Union, the United Kingdom or the States of the European Free Trade Association – EFTA – (Iceland, Liechtenstein, Norway and Switzerland) and the contract that applies to the rest of the world.
This difference is due to the company’s compliance with Europe’s Digital Services Act – DSA (Regulation (EU) 2022/2065) but it also confirms that legally and technically companies are in a position to comply with a higher legal and technical standard of , if they wanted to.
The result of this is the existence of contracts that guarantee the rights of the inhabitants of one region of the world, but not the others, establishing, in fact, a division between first and second class users. What are some of the most important differences?
One of them is that it refers to the transparency of the platform’s actions and the user’s decision-making power over the recommendation system that X decides to apply. In the terms for EU users, it is indicated that for “content recommendations, adjustments can be made to your settings and you can find additional information in our Help Center” to understand how it works. Among the elements that X uses to establish its recommendation system for the user are: how the user interacts with the company’s services, the topics that they have indicated that they are interested in and what other users who share their similar interests like, among others.
This right now recognized for European citizens allows them not only to have more and better information about how the company defines the criteria for recommended content, but also gives them the possibility of making adjustments to that option. This right is not offered to users residing in Latin America (or other regions of the world.
There are also differences for an eventual termination of the contract between users and the platform. While for those residing outside the EU the company maintains the discretion to cancel their account or stop providing all or part of the services “for any other reason or no reason at our convenience” – as already stated in the terms that were in force until November 14 – this paragraph disappears in the new contract for European users. That is to say that for these users, the company must always argue the reasons for ending the contract with a user.
Ireland for some, Texas for the rest
An important change observed in the terms is the change in the jurisdiction that X establishes in the contract when settling legal disputes. Until November 15, the jurisdiction and applicable legislation corresponded to California, because its offices were located in the city of San Francisco. However, as of these new terms, the legal domicile of X Corp. is located in the state of Texas, known for its conservative rulings.
As before, any user who wants to file a claim against X should do so before the United States Courts: in the event of a dispute arising between the user and the company, claims will be filed exclusively in state courts located in Texas, and the user “accepts personal jurisdiction in those forums and waives any objection as to inconvenient forum.”
Meanwhile, users in the European Union and other countries of that region do not resort to a North American court but to a European one: disputes “will be brought exclusively before a competent court in Ireland without taking into account the provisions on conflict of laws and will be governed by Irish law.”
X’s new terms not only expose the inequalities in the protection of its users’ rights, but also highlights the influence of local or regional legislation on the behavior of global platforms. For Latin American users, these changes highlight the urgent need for more robust regulation that guarantees equity and transparency in the digital environment for all users, without discrimination.
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