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Disclaimer, or Terms of Use, or Privacy Policy?

You see these things on some web sites. What are they and should your website have one of more of them?

Overview

Disclaimers, Terms of Use, and Privacy Policies are the “fine print” or “legalese” on the service your website presents to visitors. None of these things are generally required by law (except the Privacy Policy in some cases—more about that later), but lawyers usually tell their business clients to include one or more of these to protect the businesses from liabilities or to claim certain rights.

Believe it or not, the fine print on websites owe their existence to the same laws that spawned the shrouds and warning labels on lawnmower housings.

The theory behind this type of fine print is based in tort law, that is the body of judge-made laws that require us all to be responsible members of society. Capitalism requires products to be useful or they won’t survive in the marketplace. Judges and politicians believe legal penalties are required in order to make products non-harmful, and without such legal penalties harmful products will somehow continue to be bought by really dumb consumers who will continue to be harmed. What’s more, products must be made in such a way that even the most imbecilic use of them cannot harm people. To top it off, tort law says that a prominent announcement of the imbecilic ways NOT to use a product will actually keep those really dumb consumers from engaging is such harmful use. Everyone knows this is not a real deterrent to really dumb consumers, but having the announcement creates a useful fiction that magically protects the products’ developers and merchants.

The simplest type of warning label for a website is the Disclaimer. Basically, a Disclaimer tells readers how NOT to use your website. The Disclaimer is a min-contract between you and the reader that says something like, “This website is presented without warranty. If you use this website in such-and-such a way, I am not going to be liable for any harm that may befall you because of such use.” Just like the warning label on the lawnmower shroud, whether or not this truly stops people from using your website in the wrong ways, merely having the statement there protects your business.

The second simplest type of warning label is the Privacy Policy, which tells readers how you will use any personally identifying information they might enter through your website. This is another min-contract, but it obligates you to use the personally identifying information ONLY in the way ways you say you will.

The Terms of Use is a big contract. It can—and should—include disclaimers and a privacy policy, but it should also include further conditions on use of your website. Examples include payment terms, reservations and transfers of rights in intellectual property, data sharing and ownership, warranties, third-party beneficiaries, termination of rights, indemnifications, and a host of other legalese. Everyone knows it is likely never read, but if you present it in the correct way, it is legally binding on you and user of your website.

In future posts I will go into more detail about each of these fine print elements of your website. But first, I must give you a Disclaimer:

The materials presented here are for information only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. My writing and your reading this post, or any other materials presented here, do not create an attorney-client relationship between you and me. The opinions expressed here are the opinions of the individual author and may not reflect any actual laws or opinions of other lawyers, judges or politicians.

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