Alejandro Uria

I love writing about startups, legal tech, and intellectual property.

Do Your Website's 'Terms of Use' Mean Anything?

Photo by Fabian Irsara on Unsplash

Most website managers create terms of use before the site goes live. These terms generally describe what the site owner expects from users and what users can expect from the website. 
Terms of use identify what users may post onto or use from the site, and help put users on notice of what the site owner considers to be acceptable behavior. 
They enable owners to reserve the right to deny access to users who engage in objectionable conduct and to remove content they find offensive or that may subject them to liability.
Terms of Use also allows owners to put language up online that may help protect them in the event of a lawsuit. Courts will, in general, enforce online terms and conditions against consumer users, provided they have adequate notice and an opportunity for review. 
However strict business owners lay out the terms and conditions of their website, there are so many ways in which real users, online bots and website scrappers can violate your terms of use, that it's better to plan for all case scenarios.
To best enforce the 'Terms of Use' of your website, pay attention to the following five areas:

1. Browsewrap vs. Clickwrap license 

There are two types of terms of use online - clickwrap and browsewrap.
Clickwrap terms require the user to click a box in agreement with the terms of use.
Browsewrap terms are listed on the website, without requiring action of any kind. Consequently, if the user never saw the browsewrap terms, there was no contract formed because there was no 'meeting of the minds,' and the terms do not legally bind the users.
While some courts have held a contract unenforceable because users did not have to check a box in the agreement of the terms, courts have also refused clickwraps or click-through licenses, because a contract requires both parties agree to terms. Some clickwraps may not ensure that users had read and agree to terms. Be aware that your terms of use may not hold up in court as a binding legal contract.

2. Prohibit automated and excessive queries 

Or at least try to, by including language in your terms of use that expresses that such conduct will not be permitted. Courts have generally been unforgiving of users that excessively hit a website, citing that will slow down the system and interfere with other users' activity. If a user is making a high number of queries a day while extracting data from that website, courts have held that it may (and has) constituted trespass to chattels. Violation of this tort law could lead to a court injunction or further legal action.
"An excellent tool that allows webmasters to control the volume of malicious traffic on a website is Cloudflare's rate limiting."
- said Adan Morales, webmaster of Jump for Adan, an online portal for party equipment rentals. "It allows a customer to rate limit, shape, or block traffic based on the rate of requests per client IP address, cookie, authentication token, or other attributes of the request. "

3. Deter data mining 

Web scraping is a huge part of business activities online. Depending on the nature of your website, you may what to include a clause in your terms of use prohibiting bots, crawlers, cookies, or any other intrusive scraping device. Make clear what type of access is acceptable, and the amount of information that can be accessed. Data mining access can adversely affect the site owner's system as well, so implement a simple screening box to require users to prove they are human.

4. Make terms prominent

Courts have held that a hyperlink to the terms of use in the footer of a website does not constitute proper notice of those terms, which means that they do not bind users of that site. If terms are found to be prominent, then a court would most likely hold the user to the terms because they were on inquiry notice - they could and should have seen them. Reasonable notice and user consent are required to hold terms of use licenses enforceable.
"Often, business owners don't consult with a copyright attorney about their website's Terms and Conditions or any other legal matter relating the website because there is a lack of transparency in what attorneys charge."
- said Ailene Valdivia, spokesperson for AttorneyFee, a project dedicated to research and educate consumers about the cost of legal services. -"Solopreneurs and small start-ups just assume that attorney fees are too high, and are left with placing legal jargon on their website when most of the time they don't even understand what it means."

5. Rights of copyright and licenses 

Everything created and published on your website is automatically copyrighted. Nowadays, there are many legal service providers online that can help you with copyright issues and licenses to the content you put out there. You can license any of your rights to users to share and use your work, transfer them, or obtain a Creative Commons license.
Let your users know what they can and can't share, copy, use, and reproduce to prevent legal issues.

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