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Your Website Legal Survival Kit: Privacy Policies, Terms & Conditions, and More

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The ease with which it’s possible to set up a website can trick a lot of us into thinking “publish live” is the final step. 🙅If only, sis. We’d be remiss if we didn’t talk you through the legal components of your website. Let’s walk through the elements of 💬content, 💻development, and 🎨design that you need to be on top of to ensure your website is in compliance and serves users well.

This is your website legal survival kit. You can thank us later.🙏

Want more legal guidance as you set up an online shop or business? The Legal Godfairy is here to light the way. Browse our collection of lawyer-drafted contracts to learn more.

Your Website: Legal Principles for Privacy Policies

Data privacy is a hot topic in any arena, and the privacy policy on your website should spell out how you are collecting, storing, protecting, or utilizing user information. 

Does My Website Need a Privacy Policy?

First, let’s look at the law: privacy policies are mandated by law in many countries. There is no federal law that specifically dictates the exact nature of a privacy policy. However, this blanket statement does not mean that there aren’t regulations with which your site must comply. Let’s look at rules in the United States specifically:

  • The first standard commonly referenced for U.S. websites is Section 5 of the Federal Trade Commission Act, which prohibits “unfair methods of competition.” This is often taken to mean that site owners must state that they are not unfairly collecting user information to be used for marketing or other non-disclosed purposes. The act is often interpreted to relate to site owners disclosing how they use data, which is often done in a privacy policy.
  • Currently, there are three states in the U.S. that have consumer data privacy laws: Virginia, Colorado, and California. The laws require opt-out options for sharing personal information, as well as requiring commercial sites or online services to post privacy policies describing what type of information they collect and what information is shared with third parties.

The general vibe among legislators appears to be moving in the direction of stricter standards, so it would be a good idea to keep an eye on new rulings in your state.

Can I Just Use Boilerplate Privacy Policies?

Girl, your website is a unicorn. From development and design to integrations and plugins, it is likely that you have more than just a static site with a contact button. That would be kind of a snoozefest anyway. Most websites feature file sharing, downloads, forms, authentication tools, and even payment integrations. 

Ecomm or not, it’s likely that there are elements of your website that collect user data (yes, email opt-ins count), then share that data with a contact management system, payment system, and more. The possibilities really are extensive, and all of the care you put into creating a workflow that works should be backed up by a site-specific privacy policy.

Because your site is one-of-a-kind (remember that unicorn?), we recommend that you have a custom privacy policy that specifically states how your site, and any plugin or integration, protects user privacy. There are online privacy policy generators from reputable businesses (like Shopify) and also businesses like ours that offer easily accessible lawyer-drafted templates to get you legally legit in minutes. It may only ever come up with your millionth user, but if that user chooses to dig — and you have nebulous or inadequate language — you could be in trouble. Who has time for that? Not you, sis.

What Should be in Privacy Policies?

Meeting website legal requirements for a privacy policy is generally done by making statements about the following:

  • What type of information is collected by your website
  • What the purpose is of collecting that data
  • How data is stored
  • Details on data analytics
  • Whether or not data is shared, if so with whom and for what purpose
  • Details about data transfers 
  • Third party services, affiliated websites, or organizations
  • How your website uses cookies
  • How you secure data on your site

Because of the aforementioned uniqueness of your site (unicorn!), don’t just copy and paste this: craft something precise, and get a lawyer to weigh in.

At The Legal Godfairy, we offer easy-to-use attorney-crafted templates with editable files and all of the guidance you need to be sure your site is up to snuff. To check it out, visit our shop!

Your Website: Legal Considerations for Privacy Policies Versus Terms and Conditions

Privacy policies may be more or less familiar, but another body of work needs to exist on your site. Because these two are often confused, here’s a breakdown of the differences between terms and conditions and privacy policies.

Areas they address —

privacy policies versus terms and conditions

These are two important documents that serve different purposes.

Your Website: Legal Considerations for Terms and Conditions

Terms and conditions protect your business by setting out rules and guidelines for website use. If users ever abuse or misuse your site, or its contents, terms and conditions are your line of defense.

Some of the elements typically included in terms and conditions are:

  • User rights
  • User responsibilities
  • Policies for refunds
  • Governing law
  • Limitations of liability
  • Indemnity
  • Dispute resolution and arbitration
  • Copyright notices or intellectual property statements
  • Minimum age requirements
  • DMCA notices

Does my Website Need a Terms and Conditions Page?

Girl, yes. All websites should have a terms and conditions page. This is a legal agreement between the site owner and the site user, and one that very much protects the site owner. After all, if you don’t clearly tell people how they can (and can’t) use your site, how will you ever defend misuse? It is absolutely essential that you have site-specific terms and conditions. It’s like the ultimate pinky-promise.

At this juncture, we want to provide a point of clarification. As you search online for “terms and conditions,” you’ll probably hear a couple of other terms used, including “terms of use” and “terms of service.” In most cases, these delineations are used interchangeably. Even if there are nuances, they should all provide detail on what users are agreeing to as they use your website.

Risks of Using Free Website Terms of Use

There are plenty of Googleable website terms of use and website terms and conditions out there. When it comes to making your website legal, and legally protecting yourself, these are less than ideal. A free terms and conditions agreement may leave out critical clauses, not cover important areas, or lack legally binding statements and agreements. It’s quite a risky move, and unlike asking that cutie out to dinner, it’s one we don’t recommend.

Common Issues With Terms and Conditions Agreements

There are several common issues with terms and conditions agreements, especially free ones you find on the internet (#sorrynotsorry). These include:

  • Incomplete terms and conditions — When the T&C simply lacks important information or topical areas that relate to your specific site and specific business.
  • No agreement — Terms and conditions should require the user to agree. This agreement is a sound basis for enforcement. Without it, you’ll undermine the security of your legal standing.
  • Difficult to read — While it may seem impressive to have a terms and conditions page that scrolls on and on (and on and on and on), the goal is for users to understand it. It must be in plain language, so that users can know what they are agreeing to.
  • Outdated — Terms and conditions are like any living, legal document, and they require regular updates. As we mentioned before, new legislation is coming out all of the time around privacy laws and more. It’s important that you keep your documents current to keep yourself protected.
  • Hidden — This may be a development issue, but you can keep the sweet style of your site while still implementing legal website best practices. In other words: don’t hide the terms and conditions. They should be visible, and users should have to read them.
  • No connection to the privacy policy — While terms and conditions are not the same thing as a privacy policy, they should reference it. After all, users are going to need to agree with how their data is being shared, so the terms and conditions they agree to should at least reference the specifics of that.
  • Not addressing location or laws — Because there is no federal law related to privacy and similar standards, it’s important that your terms and conditions do reference your location, as this could impact what state laws you are complying with.

Practical Tips for Terms and Conditions and Privacy Policies 

Terms and conditions are important, but they are also just a block of text you want users to agree to. Because of that, and because you want to retain your beautiful branding, here two practical tips to adding terms and conditions to your site:

  1. Put T&C in the right spot on your website — Most website developers or owners use a link to the terms and conditions agreement in the website footer. If you facilitate financial transactions or purchases on your site, you may also need a consent checkbox for terms and conditions on your checkout page.
  1. Obtain user consent — There are two common options for getting users to agree to your terms and conditions, and these are browsewrap and clickwrap. In a browsewrap agreement, user browsing binds their agreement to your terms and conditions. In a clickwrap agreement, the user must do something to indicate consent.

As your legal godfairies, we want to level with you about these two approaches. It’s important for you to know that US courts have found that browsewrap terms of use don’t create an enforceable contract unless the website owner can show the user had “actual or constructive” knowledge of the terms (which can be hard to prove). 

To determine whether a user has this knowledge, the courts look at things like whether the terms:

  • Are sufficiently conspicuous;
  • Are easily accessible; and
  • Adequately notify the user that continued use of the website means the user agrees to be bound by the terms.

A clickwrap agreement (where users have to click “I accept” to the legal terms), offers more protections to website owners. It’s a good idea to include this as a step when users take any other action – such as creating an account, signing up for a newsletter, or making a purchase.

  1. Update your Terms and Conditions and Privacy Policies — Things on the internet change faster than you can say, “skinny jeans,” so anyone with a website needs to stay up to date on the latest requirements and standards. We already mentioned how changing legislation can impact privacy policies and protocol, but both of these areas of your website are subject to change and should be regularly reviewed and updated. Don’t rest in a one-and-done mentality: stay on top of these, and be sure you’re protected by what they say. 

Find Website Legal Essentials From The Legal Godfairy

We see you over there building your empire girl! And we’re here to support you every step of the way with lawyer-approved contract templates that contain the best protections for freedom-seeking entrepreneurs like you.As you launch your business into the world, or as your business grows, it is super important to check every box. Setting up a website with all of the legal essentials is just one of those boxes that MUST be checked. Simplify your life with our Website Essentials Kit which contains GDPR and CCPA compliant terms of use and privacy policy templates to get your website legally legit in minutes.

*Disclaimer: This blog post has been prepared solely for general information and educational purposes. It is not intended to provide, nor should it be relied on for, legal advice. Should you require advice regarding a specific matter, appropriate legal or other professional advice should be obtained.

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