Website terms and conditions act as a contract between you and the visitors to your site. Given this, it is critical the terms and conditions detail the relationship in a structure favorable to your site.
It is important to understand terms and conditions should be customized for each particular site. Why? Use your common sense. Does a blog reviewing products it makes a commission off face the same issues with visitors as a site allowing users to post their own content in the form of stories, videos, pictures, etc.?
A site posting reviews must disclose affiliate relationships pursuant to FTC rules or face being fined for $11,000 per undisclosed review. In contrast, a site allowing users to post content must comply with the Digital Millennium Copyright Act ["DMCA"] or face copyright infringement lawsuits up the caboose. Other sites might need to address issues such as earnings, health or investing disclaimers to mention only a few possibilities.
Each and every site has its own issues. I cringe when I see “free terms” or “term generators” offered online. Nothing is going to get you into more trouble then having the wrong terms on your site. The terms act as a legally binding contract. If your terms promise something and you don’t deliver it, your risk of being sued is tremendous. There are attorneys who specialize in hunting for sites who fall down in this area. Saving a couple hundred bucks on the preparation of terms and conditions now is penny foolish if you get sued for $50,000 or more because of a poor set of terms and conditions.
Website terms and conditions should contain just what the name suggests – the terms and conditions upon which a visitor can use the site in question. This may sound obvious, but the devil is in the details. An example can help show why.
WordPress blogs are probably the most prevalent website platform on the internet. This very blog is one. However, let’s assume I start a new blog on the subject of weight loss. The blog starts out as a simple theme much like the one you are reading. Visitor interaction comes primarily in the form of reading articles. This type of site is going to need terms and conditions containing basic requirements such as not copying the text on the site, not spamming the comments section, not trying to hack the site or upload malware and so on. The terms should also cover basic concepts such as requiring lawsuits to take place in my city and state. Finally, a health disclaimer will be needed to make it clear I am not offering medical advice on health care, which would be illegal in every state.
It is important to note these terms are known as a browse wrap agreement because the visitor is not actually required to agree to the terms by taking an affirmative action such as clicking an “I Agree” box. Courts are hesitant to enforce these agreements since the user may never even see the terms. As a result, blogs either need to incorporate a “click the box” system or risk their terms not being enforced. Feel free to contact me for a consultation if you are a blogger. Okay, back to our site example.
What if my weight loss blog picks up steam? Let’s assume I start doing reviews for products. I include links to those products for which I receive an affiliate commission on any sales. From a legal perspective, my blog has now evolved into a new site. My terms also must evolve. Specifically, they will now need to include language regarding the affiliate relationship, compensation generated from the relationship and placement of statements on the site sufficient to meet FTC requirements. If the terms are not modified, the FTC can fine me $11,000 for each revenue generating review. That equates to a fine of $110,000 for just 10 non-compliant reviews.
The great thing about the WordPress platform is you can always add on to it. Let’s assume my blog is going really well and I want to provide a better user experience. I decide to add a forum. Visitors to my site can now join and upload comments, pictures and so on. This new functionality should really make my site popular, but it introduces a host of new legal issues I must deal with in my terms.
The primary issue is copyright infringement. If one of my members uploads a copyrighted work to the forum without the permission of the copyright holder, then a lawsuit could occur. For example, let’s assume a member uploads a chapter from a popular weight loss book. The author and publish could sue me for copyright infringement.
To avoid this lawsuit, I need to comply with the dictates of the Digital Millennium Copyright Act. One of the steps involved in doing this will include modifying my terms and conditions to include a DMCA claim policy, notice of agent for filing claims and repeat infringer policy. Without such steps being taken, I am exposed to lawsuits.
The example above is designed to explain to you why generic terms and conditions simply fail when it comes to websites. Every website is unique and requires unique terms and conditions. Contact me today for a free consultation regarding your site.
Richard A. Chapo, Esq.