Andrew Flusche, Virginia Lawyer

Almost every website has a terms of use agreement. It’s one of those microscopic links in the footer of every page. But are terms of use agreements enforceable in court?

The Second Circuit said yes, in Register.com v. Verio, but in the TurnItIn.com case, a Virginia federal court said no. Where does that leave us?

Make your terms enforceable

To enforce a terms of use agreement, the website owner must prove that the visitor agreed to the terms. Without some evidence of consent by the user, website owners are out of luck.

This doesn’t mean that visitors must click an “I agree” button for the terms of use. Here are some guidelines to follow:

Show the terms of use - Visibility is key. If users are registering on your website, provide a highly visible link in the registration process to the terms of use. Don’t just assume that your footer link is enough.

Use specific language - With that terms of use link, specifically say something like “registering with this website signifies your agreement with the terms of use.” You don’t need a separate terms of use “I agree” button, but make it clear.

Add a checkbox - You’ve seen this one before. This is why websites make you check a box saying “I have read and agree with the terms of use.” Website owners can later use that to enforce the agreement.

Keep records - Most importantly, keep records of whatever method you use. If you end up in court, you’ll need to prove that the user saw the terms of use and agreed to them. The more proof you have, the better.

If no registration system

Not every website needs a terms of use agreement. If your visitors just read content and go about their day, why do you need a binding contract between them? You don’t sign a contract to read the newspaper, do you?

If you don’t have a registration system, I’ll be bold and say that your website probably doesn’t need terms of use. It’s probably not incredibly interactive where users are uploading content, etc. So don’t worry about the terms.

What do you think?

I’m not claiming to be an expert here. Please jump in to correct me, if you think I’m wrong.

And, of course, this isn’t legal advice. If you need legal help, give me a call: 540.318.5824.

Photo by khalid almasoud

Many businesses and individuals are concerned about potential liability from material third-parties might post on the company website. The law on this topic just became a little more clear.

The 7th Circuit just ruled that the Communications Decency Act of 1996 (CDA) immunizes craigslist from discriminatory housing ads posted on its website.

In plain English

The Fair Housing Act basically prohibits discrimination in the housing market. Apparently some of the housing posts on craigslist were deemed discriminatory.

But the CDA specifically exempts internet service providers from liability for the content of third parties. So craigslist claimed it was immune from the discrimination claims. The court agreed.

Applied to you

Generally speaking, you should not have illegal material on your website. But laws like the CDA help ensure that you are not responsible for content posted by third parties.

Unfortunately, many areas of internet law are vastly unsettled. That means you should still exercise care and caution with your websites, especially regarding any content submitted by your visitors. Hopefully more decisions like this one will further clarify that website owners do not bear ultimate responsibility for third-party content.

Photo by J.Salmoral

Lots of startup companies are heading to the internet these days. Web 2.0 has been around so long, it feels like we should be calling it 3.0 by now.

In all that hustle to launch a website, I hope you haven’t forgotten the fine print. Those tiny links at the bottom of every website to “terms of use” and “privacy policy” aren’t just for fun. They really mean something.

To see what I’m talking about, check out the terms for a website you frequent. I examined Facebook a while ago. Visitors agree to a number of things, just by using a site. It’s legally binding.

What about your own site? Are you protecting the company you have bootstrapped into existence? If your site is interactive, that presents an even larger number of issues. Here’s a big one: do users still own the content they upload to your site?

Don’t just let your website designer copy the terms of use from another site. Every company and website have different needs. It’s best to consult an attorney before your website launches, so you can make sure all your bases are covered.

Think carefully about your terms of use and privacy policy. The fine print does matter.