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Are Your Website Terms & Conditions and Privacy Policy Compliant? | Larry A. Silverman, Esq

Are Your Website Terms & Conditions and Privacy Policy Compliant?

  • By:Larry Silverman
  • 0 Comment


Any company or non-profit with an online presence (and these days, that’s just about every company or non-profit of any size) must provide visitors to its website with a number of pieces of information. While the amount of and nature of the information your website will need to include will vary depending on the nature of your business and what information, services and products your website offers, maintaining compliance with the numerous and ever-changing legal requirements applicable to websites requires vigilance and ongoing review. In order to understand and appreciate these legal requirements, it is important to understand how your website operates; the services or products available on the site; whether there are interactive areas where User Generated Content is posted; what, if any, personally identifiable information is collected on the site; whether you plan on sharing the information you collect with third parties; and what steps you are taking to keep the information you collect secure.

The following are some of the most frequently used terms that appear on a website, along with a brief description of those terms:

Terms of Use

These are the rules that govern the use of your site. Whether the visitor is merely seeking information about your company, but is not purchasing products or receiving services through the site, or whether the visitor is signing up to receive services or products, all businesses need to post “Terms of Use.”

Privacy Policy

The “Privacy Policy” discloses what information is collected through the website, how that information and data is used, how it is secured, and whether it is disclosed to third parties. Every business needs a “Privacy Policy” on its website.

Terms of Sale

If your company is selling products or services on its site, “Terms of Sale” that outline the terms of purchase for the online sale and usually include warranty, delivery, returns and payment terms should be described to the visitor.

DMCA “Takedown” Procedure

If your website posts User Generated Content (for example, thru a blog or chat room), it is essential that it include terms that detail the company’s takedown procedure under the Digital Millennium Copyright Act (DMCA). The DMCA provides a “safe harbor” that protects you against claims that material posted by a third party on your site violates the copyright of another person or entity. If you fail to follow each and every statutory procedure detailed in the DMCA and a third-party User of your site posts, for example, a photograph that the User does not own or have permission to use, you could be liable to the photographer for copyright infringement. Therefore, strict compliance with the DMCA procedures is a must for any site that posts any User Generated Content.

Acceptable Use Policy

This is a set of rules designed to advise the visitor to your website what activities are permitted and what activities are prohibited when he or she is using your site. These “rules of the road” are particularly important when visitors can post content on your website so that any company that has a chat room or permits any posting on its website should have an “Acceptable Use Policy” as part of its Terms and Conditions. Examples include advices to the visitor that he or she is prohibited from posting defamatory or offensive content and content that violates a third-party’s copyright or trademark rights.

The information you should include on your website will vary depending on the nature of the activities on your site. Certainly, at a minimum, the above terms should be included on any businesses website. Visitors are entering into a contract with you each time they visit your site. Having clear “Terms of Use” and a “Privacy Policy” places the user on notice what is expected of him and tells the visitor how you be will using any information he or she submits to the site. Having “Terms” and a “Privacy Policy” tailored to your business and to your website will reduce the risk that the user (or government regulators) will have viable claims against you for any losses they claim resulted from their use of your site. Because “one size” clearly does not fit all companies, frequent legal audits of your website to make sure you have the right legal terms in place is an effective way to minimize your legal risks.


Posted in: Digital and Privacy Law