Updating Your Website? Update Your Terms!

We are officially in the swing of 2020. Welcome to a new year—and a new decade! If you’re feeling ready for a change and updating your website, or even if you aren’t, now is a good time to take a look at your website’s Terms of Use, Terms of Sale, and Privacy Policy. If they are more than a couple of years old, you are probably behind on some important legal developments. If you “borrowed” them from another website or found them in an online template, they may be causing you more harm than good. If you have no terms at all, you may even be violating the law.

Why are terms so important?

Terms of Use

A website’s Terms of Use are there primarily to protect your business. They are a contract between your company and the users of the website. They give you one more tool for taking action against anyone who misuses your company’s website, from hacking to copyright infringement to sharing inappropriate content. If your website allows its users to share information, posts, and so on, the Terms of Use are also the best place for you to share your company’s DMCA take-down procedures, which help protect your company from liability if a website user infringes on a third party’s copyright rights. They are also where to share any guidelines you have for users about what they are or are not allowed to post on your company’s website. And if you haven’t updated your Terms of Use recently, you may not have kept up with shifting rules about how to ensure those terms are binding on your website’s users.

Terms of Sale

If you sell products on your website, the Terms of Sale are also there primarily to protect your business. They are a contract between your company and anyone who makes a purchase on your website. They govern who bears what risks: when is an order official? What happens if you don’t have the product in stock? When or why can your customer return products for a refund or a store credit? Having clear, unambiguous Terms of Sale can help protect both you and your customers.

Privacy Policy

Finally, what is arguably the most important document: the Privacy Policy. This document informs your website users what information you are collecting from them and how you are using it. There are laws in at least three states that require you to have a Privacy Policy and set out specific requirements for what the Privacy Policy must cover. Other states don’t have specific requirements for your policy, but do have specific requirements for the kinds of security and procedures you need to maintain—and it could be a problem if you don’t describe what you’re doing accurately in your Privacy Policy. It is absolutely critical that your Privacy Policy accurately describe your practices, and if those state laws apply to your company, that it comply with them. Your company may also have additional rules to follow and disclosures to make if it is in a regulated industry like finance or health care. The consequences of non-compliance can be pretty draconian, so it’s better to comply than to

So you need to make an update. What do you do?

First, consider how well your current terms are working for you. Maybe you’ve had a dispute with a customer about a product sale and want to make sure that you don’t have to go through that again. Maybe you host a web forum and have noticed some troubling behavior you would like to ban in the future. Maybe you are aware of some of those new state privacy laws, and know you aren’t in compliance, but just haven’t had a chance to get around to fixing things yet. Maybe you updated your website and you aren’t quite sure if your old Privacy Policy is still accurate.

Second, gather some information from your web developer. What kinds of personal information are you collecting? What kinds of non-personal information are you collecting? What kinds of technology are you using to track your users? Is there anything your developer has noticed website users doing that they shouldn’t be?

Third, contact our office to help you make updates. Your attorney will ask you questions about your website, about your business, and about your industry, and help you create terms for your website that will reflect your business’s unique needs.

Updating Your Outdated Terms of Use

You just looked at your business website’s Terms of Use and Privacy Policy (I’ll use the word Terms to refer to both of them together) for the first time in ages and realized that they have been in place since the Clinton Administration. It’s time for an update. What do you need to consider?

Don’t copy and paste. Terms should be tailored to your website. Your site will need different terms depending on whether you accept posts from users, how you want users to be able to use the site, what kinds of information you collect from users, whether you wish to allow sharing, and more. If you merely find a website similar to your own and copy its Terms, you risk creating Terms that you do not wish to bind your users, let alone your business.

Follow any requirements for your industry. If you are in an industry that is subject to regulations, you should make sure that your site’s Terms allow you to follow those regulations. For example, some industries are required to keep certain records about customer interactions for a certain amount of time. Make sure that your Terms disclose that you are keeping those records, and for how long.

The FTC regulates privacy policies. The Federal Trade Commission has been very aggressive about enforcement of privacy policies for the past few years, and it updates its regulations fairly regularly. Make sure your attorney looks at the latest regulations in drafting your Privacy Policy.

State laws. If your website is aimed at residents of more than one state, make sure you are complying with the laws of every state you are doing business in. California has generally been the most aggressive state in terms of legal regulation of website Terms.

Consider your timing. Pinterest has recently become a very popular site. If you want to, for example, update your Terms to allow you to share your users’ content via Pinterest, you will have to choose your timing carefully. If your current Terms do not grant the license needed for such sharing, you will need to make sure that your users are bound by your updated Terms before you add a “Pin It!” button or other means of sharing to your site. Otherwise, you may be risking a law suit for facilitating the violation of your users’ copyrights.

Inform your users of the update—email them if you can. It has become more and more common for websites to provide some notice before changes to their Terms go into effect. One might even say it is swiftly becoming a standard practice in the industry, especially for social sites. Facebook has a Site Governance Page where users can learn about and weigh in on changes before they are made. Pinterest gave its users more than two weeks’ notice, both by email and by notice on the Pinterest website, that it was going to make changes to its Terms of Service (and still makes the old terms available on the site in case users want to know how they have changed). Google gave users more than a month to review the changes it made to the Terms for its many services, informing them via pop-up when they visited a Google site as well as via email. If at all possible, you should take similar steps to inform your users of your changes. You don’t want your business to be left behind, if for no other reason than your users will expect this level of service.

Updating your Terms requires some consideration, but can be a painless process with the proper planning.