If you need to "clarify" your ToS in a blog-post, your ToS is shit and needs to be re-written.
I don't give a crap about your blogpost. If it's not in the ToS, it's not binding.
If you think I should understand your ToS in a specific way, great, there exists a perfect place to put that clarification in: your ToS.
> If it's not in the ToS, it's not binding.
I wouldn't be sure. The standard legal theory is that intent of the parties when entering the contract trumps its letter (e.g. if the letter of the contract contains a typo that changes its meaning, and it can be shown that both parties intended to enter a contract without that typo, the contract without the typo can be enforced). The blogpost can be very strong evidence of intent.
That said, arguing that in front of a court will be risky and costly, regardless of whether it's actually correct.
@robryk blogpost can be helpful, sure, but as a user of a service, how the fsck am I to know that there's a blogpost that proves my point?
In other words, this kind of thing can be used to *purposefully* obscure stuff. You write X in your ToS, you get pushback, you "clarify" it in a blogpost that you send to the critics, but regular users still only read the ToS and are none the wiser.
Pretty crap move.
That sounds like an undesirable situation for the company though: regular users see only the terms that can be understood to be worse than the terms they could actually argue in court they are getting. So, the company gets loss of business due to user-unfriendly terms _and_ the user-unfriendliness is probably unenforceable. (IOW, isn't this unforced self-generated negative PR?)
But what does falling for it consist of? The company can choose to act according to worse terms or not; they can't divine whether a given user has fallen for that and act differently in that case.
(I'm thinking of a difference in terms that allows the company to e.g. use user's data for something; perhaps I'm not seeing the kind of difference you meant?)
@robryk I never said it's a good strategy. But I can totally see it as a strategy devised by some idiot CEO to try to "maximize shareholder value."
"""
When get criticized for this ToS change, we'll point people to this blogpost and claim its fixed.
Meanwhile, for most people, we'll just continue to use the exact language in the ToS, training them AIs on their data. They will never find that blogpost anyway!
We can't lose!
"""
It's bullshit, but I can totally see that kind of conversation.
@robryk or, they get to try to convince users that the worse terms are in effect, and a lot of users just fall for that without a fight?