The Problem with Blogs and Terms and Conditions of Use

There are millions of blogs online. Some have term and conditions of use while others do not. The question many bloggers should be asking is whether they need terms for their blog and, if so, whether such terms are binding Blog Terms and Conditions of Useon visitors to the site.

Terms of Use

The conditions of use for a website often seem to be a mystery to most bloggers. Let’s resolve the mystery. The terms act as a contract between you, the blogger, and the visitors to your site. The terms are used to establish guidelines ranging from how visitors can use content to the court system where any legal dispute will be filed. Although tailored to the web, these terms really are no different than what you agree to when renting a car, buying insurance or entering into any other legal transaction.

The Problem

Blogs present a unique problem when it comes to terms of use and, for that matter, privacy policies. The problem boils down to contract law.

Generally speaking, a contract can only be entered into by two parties if they both agree to it in an affirmative manner. For example, assume I am selling my used car, and you are interested in buying it. You must take the affirmative act of giving me money to show your acceptance of our contractual relationship. In turn, I must sign over the title to the car to evidence my acceptance of the terms.

Now consider a website where you make a purchase. At one point or another, you are usually required to check an “I Agree” box indicating you agree to the terms dictated by the website. In this scenario, your action is the equivalent of a signature on a contract.

This situation presents a problem for bloggers. A blog is a passive use website. Visitors can view the content without the need to check a box. Given this, the question is whether the terms of the blog are binding on the visitor. The trend in courts is to rule the visitor is not entering into a contract by just viewing the content.

Constructive Notice

So, what is a blogger to do? There are only two real options. The first is to require visitors to go through a check the box acceptance procedure before allowing them on the blog. This process will kill click-through rates, making it an unrealistic solution.

The second option is to include terms of use and make the link more prominent on the blog. The idea is to place the link in such an area that your attorney can argue the user had “constructive notice” of the terms and should be bound by them. Although not a slam dunk, courts are more receptive to this approach.

Going Without Terms

Can you go without terms of use for a blog? Sure. There is no law requiring a website to have them. I would not recommend this approach. If nothing else, the terms of a website act as a prophylactic against legal trolls who search the web looking for picky, esoteric reasons to file lawsuits against websites. It is far better to take steps to cut off such threats by dictating specific clauses in your terms up front than try to argue them after a lawsuit has already been filed.

Starting a blog is incredibly easy these days. If you decide to let your voice be heard, make sure to protect yourself. Although the application of terms and conditions of use on a blog is a gray area, you are better off with them than without them.

Richard A. Chapo, Esq.