Take website terms and conditions seriously

One of the biggest area for concern on the Web today is the paucity of adequate website terms of use and privacy policies. Website proprietors often take a relatively casual approach to these two documents without any regard for the degree to which they could be endangering themselves in the process. There are a substantial number of risks that arise out of publishing content on the Web. These include copyright violations, defamation, improper use of personal information or outright privacy invasions. Terms of use and privacy policies are intended to structure relationships with website visitors and minimise the risk of a dispute arising (and succeeding) due to these risks eventuating. They operate as contracts with and advisories to visitors as well as cater for a range of legislative requirements.

There are a few mistakes that website proprietors make when they prepare terms of use and privacy policies.

  • The first mistake is that they don’t prepare both documents. Websites that have any form of interactions with Internet users require both a terms of use and a privacy policy. They can be part of the same document but both a terms of use and a privacy policy must be published to a website. The terms of use will cater for access to and use of the website (as well as vital provisions dealing with liability concerns, dispute resolution and licensing issues) and the privacy policy will deal with the collection of personal information and its processing (legislation increasingly requires that these policies be in place and impose penalties for non-compliance).
  • The second mistake is to copy and paste terms of use and privacy policy provisions that the website owner finds on the Web and which look impressive enough to use. These imported terms are often taken from websites in other countries and their terms of use and privacy policies are written in the context of foreign legal systems. They include terminology that is foreign to local law (and which probably doesn’t have any real meaning in the local legal system) or provisions which simply don’t apply or just muddy the waters even more.

    Another problem with imported terms of use and privacy policies is that they are often imports themselves, are poorly drafted or are simply inadequate. Cutting and pasting these terms may seem like a good idea and a real time and money saver but they can cost website owners dearly if a dispute ever arises and the terms are either of little assistance or even disadvantage the website owner. It is a little like building your own car based on what you have seen on other cars using dubious spare parts and materials. The car may drive ok, then again you could find yourself in a catastrophic accident.

  • It sounds a little self-serving but another mistake website proprietors make is that they don’t consult with their lawyer when they build and publish a website. There is a diverse range of legal issues that apply to websites and it is really important to speak to a trusted legal advisor who is familiar with these issues and who can guide you around the more common pitfalls. This isn’t to say that consulting with a lawyer will protect you absolutely from any liability (it won’t), but it can help you minimise your risks greatly. It is certainly worth the initial cost making sure that you have a sound legal foundation for what will hopefully become a very successful venture.
  • Yet another mistake is to skimp on terms of use and privacy policy provisions because the end result of a proper drafting process looks like too much text to wade through. Properly drafted terms of use and privacy policies run to many pages because they cater for a substantial number of issues. Cutting back on the page count means cutting out important safety features that are frequently built into these documents. To use the car analogy, this is like taking out the brakes, seatbelts and airbags because it makes the car a little heavier and perhaps a little bigger. The car will be just fine until you need to slow down or protect yourself in the event of a collision. At that point, it will be too late to add these safety features back.

One group of website owners that seems to be overlooked and largely uninformed is the blogging community. It is so easy to publish a blog and post to it that bloggers often overlook the need for the same legal protections more mainstream websites have been using for years. Bloggers potentially attract more liability in certain respects than traditional, static websites and arguably need terms of use and privacy policies even more. Unfortunately bloggers frequently don’t make much money from their blogs and can’t afford the legal advice larger companies take for granted. It is an unfortunate Catch-22.

In order to assist bloggers we have prepared a generic set of terms of use (incorporating a privacy policy) which are available for free to bloggers. This document is licensed under a Creative Commons license so bloggers are free to share it and pass it around. The blog terms of use is a fairly simplified version of the commercial grade terms of use typically required by larger companies and is tailored for use on blogs. The zipfile includes an explanatory note with a little more information about the terms of use. It is important to note that the terms of use do not represent legal advice on any specific blog or set of circumstances and should not be regarded as such. Consult your lawyer if you require specific legal advice.

Update: The blogger terms of use are also available through Scribd although remember that you still need to add your details to the document before you can use it.

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