As a lawyer, I should let you know I also find the terms and conditions for websites to be just a tad bit bland. Some webmasters have taken to creating funny terms and conditions. The question is whether this is a good move?
The Terms and Conditions of your site perform the very function suggested by their name. They represent the legal guidelines under which a visitor to the site must act if they wish to view the various pages/files of the site and participate in any interactive areas such as comments and forums.
Put another way, the terms act as a contract between you and the visitors to the site. Have you ever read a funny contract? Probably not. The reason for this is the language written out in the contract serves certain purposes. In many cases, the language is often required to be stated in certain manners such as when you see WARRANTY PROVISIONS WRITTEN IN ALL CAPS. No, the site owner isn’t screaming. The law requires the clauses to be brought to the attention of anyone viewing the contract as a whole by being “conspicuous”, which is why lawyers write them in caps.
So, can you write the terms in a humorous manner? Well, you can do whatever you like, but one has to be careful. A court is not going to slam you for trying to be funny per se, but one might fail to include important phrasing in the language as required by the law. Let’s take a look at a few situations.
Do you allow visitors to post anything to your site? If so, you should comply with the Digital Millennium Copyright Act of 1998. The “DMCA” covers copyright infringement issues on the web. How the DMCA works is beyond the scope of this article. What is clear is a site owner must include very specific language in their terms dictating how to submit claims, the agent to whom complaints must be submitted, repeat infringer policies and so on. If you write a “funny version” of this clause and leave out critical language, you lose the immunity from lawsuits provided by the DMCA. You will not find any resulting lawsuits funny at all.
Every set of terms should contain language designating the law of a particular state that should be used to decide any litigation. The inclusion of such language is critical because the outcome of a dispute with a visitor will often depend on what law is applicable. The legislation in the State of Washington tends to be conservative in contrast to more far-reaching laws of California. In Washington, a corporation such as Microsoft can restrict an employee from leaving the company to work with a direct competitor. California law does not allow for such restrictions. In short, this designation is important.
Vague and Ambiguous
Courts do not interpret contracts in a vacuum. When one party sets the terms of the contract, the courts typically interpret the language of those terms against that party wherever the language is vague and ambiguous.
With website terms, you are dictating the terms and the visitors have no choice but to accept them. Given this, any vague and ambiguous terms are going to be interpreted against you. Funny language stands a good chance of generating a chuckle but also being interpreted as very vague and ambiguous. Put another way, your efforts to be funny could cripple you in a legal dispute.
Is it wise to try to use funny terms and conditions for a site? Anything is possible, but you must do it very carefully. Contact me to get a set or have yours reviewed.
Richard A. Chapo, Esq.