WNA Blog

Fri 19 Jun 2020

What Are Website Terms of Use?

Legal Services
Terms of use for a website are legal terms that govern, or attempt to govern, the use of the website by a user of the website.

They can be called the website “terms and conditions” or “terms of use” or “legal terms”. Often, a user will see a link at the bottom of each page of the website to the Terms of Use. Generally, the terms are divided into some sections such as for privacy, copyright and trademarks.

There are various reasons why a website owner may wish to include Website Terms of Use.

  1. To give users notice about the website, such as its purpose, what it does and does not do;
  2. To provide information about the currency of the information on the site, and how often it is updated;
  3. To provide information (and disclaimers) so that the user cannot claim reliance on the website;
  4. To inform users as to the intended audience of the site, including the geographical audience, age and other demographics, and type of intended audience (consumer, professional, business);
  5. To convey limitation of liability provisions;
  6. To explain intellectual property issues, such as how the user may use the copyrighted material on the website, and if necessary, dealing with ownership or the right to use content submitted by the user;
  7. To provide the information required by privacy laws, such as a privacy collection and use statement.

Many issues can be covered off by Website Terms of Use, and the above are only a sample of typical sections of terms of use.

Are Website Terms of Use legally binding or constitute legal notice?

A key question is whether website terms of use are contractual terms or are simply a notice to users. This is an essential consideration as it impacts the effect, as well as the content, of the Terms of Use.

To be a legally binding contract, the Terms of Use must be made available to the user, and the user has to accept the terms. Most Terms of Use are simply a page on the website that can be accessed by a link on the bottom of each webpage. The Terms of Use might include statements such as “if you continue to use the website, you acknowledge that you have read and agree to these terms of use”. If the user accepts the terms, for example, by clicking a checkbox indicating their agreement, this will likely be binding. Equally, if the user visits the website often, there is a stronger argument that the terms are binding on the user.

However, other factors suggest that website terms of use that are located on a separate page of the website may not be binding on a user, at least in certain circumstances.

By way of example:

• If the user only visits the website once, it is hard to show that the user signified agreement through conduct. The user must visit the website at least once to see the terms of use located on the site. After reading the terms, the user may not agree to the terms, and then no longer use the website. This first visit is very unlikely to constitute an agreement to the website’s terms.

• The website owner may have a difficult time proving that the particular user visited the website, and how many times. It may be possible to determine that a specific computer or device was used to access the site, but it may be impossible to tie this use to a particular person. It is difficult to prove that a contract exists if you cannot determine who the other party to the contract is.

• A court may be reluctant to enforce a contract with unreasonable or one-sided terms, or within an indemnity clause, against a user in these circumstances.

• As a practical matter, the link to the terms of use may not be easily seen, may not be on every page, or may not have a link that identifies that it is a link to binding legal terms.

Where possible, website owners should make sure that they keep evidence of the date that the user agrees, and the version of the website terms as at that time. It is not unheard of where the website terms change, and the website does not keep the prior conditions, or cannot demonstrate whether any particular user agreed to the preceding or the current terms or both.

Please contact Robinson Nielsen Lawyers if you wish to talk further.

This publication is not intended to be a comprehensive review of all developments in the law and practice or to cover all aspects of those referred to. Readers should take legal advice before applying the information contained in this update to specific issues or transactions.

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