Most people have seen hundreds or thousands of Terms of Service and Privacy Policies in their lifetimes. You have probably seen several today and not even realized it. What you might not have realized is that these bland web pages are incredibly important for protecting businesses. As an attorney who writes website Terms of Service and Privacy Policies for small businesses, I often have to explain to my clients why it’s so important for them to include those legal notices on their websites and apps. I thought it would be a good idea to make this important information available for anyone who needed it, so here we go!

Am I Legally Required to Have Terms of Service or a Privacy Policy?

Website Terms of Service (also referred to as Terms of Use or Terms and Conditions) is a legal agreement between you and your website visitors. It lets your website users know what they can expect from your business and what you expect from them. In other words, your Terms of Service page sets the rules for using your website. While establishing rules for your website is always a good idea, it is not a legal requirement that your website has to have a Terms and Conditions page. That does not, however, mean that it’s not a good idea for your website to have a Terms and Conditions page.

Website Privacy Policies, on the other hand, are legally required if you collect any type of “personal data” from your visitors. A privacy policy is a legal agreement that explains what personal information your website will collect from visitors, how your business will use and process data, and what security measures are in place to protect the data.

Both Terms and Conditions and Privacy Policies are important for protecting small businesses (and big ones too!) that use websites to do business. Whether you are engaged in e-commerce or you just use a website to promote your business, Terms of Use and Privacy Policies that are tailored to your business’ specific needs can help keep it safe.

How Can Terms and Conditions Protect My Business?

Outlining the Terms of Use for your website can help protect any business, but it is especially important if you participate in e-commerce or otherwise offer goods or services for sale via your website. Even though Terms of Service are not legally required in the United States, there are several reasons why it’s a good idea to include at least a basic Terms and Conditions page on your business’ website. Three reasons follow:

Benefit #1 — Protecting Your Intellectual Property

With the exception of any user-generated content, your business owns your web content, your logo, the design of the website, and everything else on your website. One benefit of including a website Terms of Service page is to help avoid brand and copyright infringement by informing users of the following:

• You own all intellectual property rights to content on the website.
• Your intellectual property rights are protected by copyright, trademark, trade secret, patent, and other applicable laws.
• Website visitors are not permitted to use any of the website content without permission.

Benefit #2 — Limiting Liability

Terms of Service agreements usually include a warranty disclaimer to limit liability against the website owner if any errors are found in the web content or in the content found on linked third-party websites. That disclaimer can also explain that your business is not responsible for ensuring that the information provided on the website is accurate, comprehensive, or suitable for any purpose. Including disclaimer language in the Terms of Use can help you avoid a lengthy and costly legal battle in the future.

Benefit #3 — Keeping Website Users in Line

Your Terms of Use can also be used to outline what is acceptable behavior on your website. That is especially important if your website allows for user interaction. A well-drafted Terms and Conditions page will explain that abusive behavior, such as spamming or offensive postings, will not be tolerated, and will spell out the consequences for engaging in that behavior.

When Do I Need a Privacy Policy?

The short answer? Almost always.

The long answer: Privacy Policies are legally required when you collect any sort of personal user data from your website visitors or mobile app users. The definition of “personal data” is very broad and includes personally identifiable information such as:

• Names
• Email addresses
• Billing addresses
• Shipping addresses
• Phone numbers
• IP Addresses
• Dates of birth
• Social security numbers
• Details of physical appearance
• Any additional information that could identify a user

Most websites collect some form of identifying personal information from visitors and will therefore be legally obligated to use a Privacy Policy.

Also, even if your website isn’t legally required to have a privacy policy, you may be contractually required by your third party website vendors to have a privacy policy (e.g., Google Analytics). 

What Should I Include in My Website’s Privacy Policy?

The information that is required in a Privacy Policy will vary based on how your website collects and stores user data. In creating a Privacy Policy, you should also consider where your website users live. If you run a global business, you will also need to make sure you comply with international privacy laws.

Even though the exact contents will vary from website to website, there are a few pieces of basic information that should be included in every Privacy Policy. A brief explanation for each informational requirement is included below.

Business Name and Contact Information

Your Privacy Policy must contain the official name of your business and contact information that can be used to reach your business.

Types of Personal Information Collected

Your business is legally obligated to disclose the specific types of personal data you collect from visitors.

How Personal Information Is Used

The specific way your business will use its website visitors’ personal data should also be described in as much detail as possible.

Why You Need to Collect Personal Information

Privacy legislation limits your data collection to personal data that you actually need, and requires you to disclose the reason you need it.

How Visitors Can Opt Out of Data Collection

Your Privacy Policy must include instructions for how users can opt out of personal data collection on your website, and explain how they can obtain a copy of any personal information that has already been collected by you.

How Personal Information Is Shared with Third Parties

The majority of businesses use at least one third party tool such as Google Analytics on their websites. Your Privacy Policy needs to explain how information is shared with third party services, and you should also disclaim liability for anything that happens after a user clicks on a third party link from your website.

Do I Really Need a Lawyer to Write These Things?

While you could use an online generator or legal template to create your own Privacy Policy and Terms of Use, a lawyer can make sure that your legal website notices are complete, correct, and tailored to your business. I know I am biased as a business attorney myself, but I have seen firsthand examples of the damage a poorly written Privacy Policy or Terms of Service can cause. Terms and Conditions that don’t cover all the bases can leave your business vulnerable to lawsuits and copyright infringement. Noncompliant Privacy Policies can lead to state and federal intervention and legal consequences. 

The best way to ensure that your website’s legal notices are both comprehensive and customized to your business is to avoid “Google Lawyering” and have a professional handle it for you. Mod Law Firm is happy to help assist you with crafting the perfect Terms of Service and Privacy Policy for your business. If you live in Oregon or North Carolina, you can set up an introductory consultation with Mod Law Firm to chat about your questions and concerns!