Tips for Creating Website Terms and Conditions

By Mikal E. Belicove|For|January 10, 2011

On a scale of one to 10 — with 10 being excruciatingly boring — I’d rank website terms and conditions of use agreements as maybe a twenty. Dry as dust. The only thing less spellbinding than T&Cs might be the privacy policies that often accompany such gray type.

Why do companies insist on including them on their sites? After all, website owners aren’t even required to create or publish these contractual agreements between the site owner and the end user.

Same goes for privacy policies, says Cynthia J. Larose, Esq., an attorney with the 500-member law firm of Mintz Levin Cohn Ferris Glovsky and Popeo PC, with offices throughout the United States and London.

If the website doesn’t collect any personal information from its users, there’s no need for a privacy policy, says Larose, who represents companies in information, communications and technology, including e-commerce and other electronic transactions.

She says only California requires a privacy policy under most circumstances. That law, called the California Online Privacy Protection Act of 2003, requires companies operating a commercial website to post a conspicuous privacy policy and disclose personal information that they share with third parties.

“In addition, if your website collects information from, or is targeted to users in other countries, the laws of those countries may apply and may present compliance challenges,” Larose says. “And if a website collects certain types of information (financial, health), there may be federal laws that require that the information be protected, and site owners would generally want to disclose to the user how the site is in compliance with those laws.”

Why then, if these dull documents are rarely required, is there a need to go to all the trouble of composing them and slapping them on your website? Larose says terms of use are advisable if you want to “enforce” contractual arrangements with end users, such as copyright and trademark, licenses, etc.

“Privacy policies are advisable if you collect and use personally identifiable information (pii),” she says, adding that in the U.S., the only restriction on collection and use of pii is that you accurately disclose what use you will make of the pii and how that pii will be shared, sold or licensed to unrelated third parties (such as list brokering).

And if you’re contemplating adding T&C documents to your site, Larose suggests they be…

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