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.
You should always customize terms and conditions to match the particular aspects of a website. Why? Use your common sense. Does a blog reviewing products face the same issues with visitors as a site allowing users to post content in the form of stories, videos, and images?
A site posting reviews must disclose affiliate relationships pursuant to FTC rules or face being fined for $16,000 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 websites 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 than using the wrong legal language 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 that make this mistake. Saving a couple hundred bucks on the preparation of terms and conditions is penny foolish if it results in a lawsuit for hundreds of thousands of dollars being filed against you.
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 statement 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 with a simple theme. Visitor interaction comes primarily in the form of reading articles. The terms for a site of this sort should cover fundamental concepts such as requiring lawsuits to take place in my city and state while prohibiting the copying and reposting of these articles.
What if my weight loss blog picks up steam? Let’s assume I start posting 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, language regarding the affiliate relationship and compensation generated from the relationship must be included. If I don’t complete the modifications, the FTC can fine me $16,000 for each revenue generating review. That equates to a fine of $160,000 for just ten 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 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 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, designated agent to receive 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 individual terms and conditions. Contact me today for a free consultation regarding your site.
Richard A. Chapo, Esq.