Terms of Use – Are They Pointless?

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