Just to be clear, I don't have any case. I'm just curious about this issue. How can we say that a website or blog's "Terms of Use" is legit? Are there any entities that need to review it first and get approved for it to be legit? Or there's absolutely none and everyone is free to create their own "Terms of Use" ? If there's none.. Can we use it as a possible basis to defend us on the court against any case against us? TIA
A proper "terms of use" is created specifically for your website and location by an experienced attorney. While a well crafted tos will give you some protection and can be used as part of your legal defense, it does not prevent you from being sued, and it will not give blanket protection from everything you or your users do. There is no "approval" process by an outside entity other than your own legal counsel.
Note that mjewel said "A proper 'terms of use'". I've seen many terms of use that are thrown together with so little thought that they don't even address the most important issues facing a particular site. A site selling goods needs a different TOS than a site providing medical information. A site collecting financial information from its users needs a different TOS than a blog. A site allowing users to upload content needs a different TOS than one that does not allow uploads. And so on...
That's why I asked, who will verify if is it proper or not? the court itself? If that is his website and we're just the visitors.. The owner have all the rights to set the rules regarding his/her TOS. We don't visit his website as if they force us to do so. Almost all website's TOS are BS towards their business. especially the famous "We have all the rights to modify our TOS on any given time without giving any notification" I think almost 95% of internet users don't read a website's TOS, that's why IMO there should be atleast an entity/organization to approve a website's TOS just like the trademark and copyright. By this, visitors and owner will be both protected in legal cases.
When properly written, the TOS becomes a contract between you and your web site visitors. Because it is a contract, the local laws of contracts apply, and the courts will enforce the TOS as it does any other contract. There need not be an entity/organization to approve the TOS, it is an agreement between the website owner and the visitor. If the visitor does not like the contract they can choose not to do business with the web site. This is no different than not renting an apartment because you don't like the lease. As an an Internet attorney, I spend much of my day writing the TOS and the Privacy Policy for web site owners. I agree that most people don't read them until they have a problem. Then the terms of the TOS contract will apply. Since the web site owner can dictate the terms on a take it or leave it basis, they are in a position to insulate themselves from most legal difficulties. (I also do not use the "We have the right to modify" unless my client publishes the changes to their users.) Finally, as I have repeatedly said in this forum, spending the money to have an attorney write your TOS and Privacy Policy will pay you big dividends whenever you have a controversy. Pay a little now and save big down the road.
Hi thanks for the very good reply. Now this is getting interesting... So not matter how BS the TOS of a websites is towards the website's owner (like: we have the right to modify/change), visitor who filed a legal complaint will be having a very weak case against the website owners because like what you said "It is a contract, and the court will enforce it as any other contract" especially if that visitor failed to read the TOS and latter found out that he actually abide the TOS but because he find that the TOS is so unfair he pursue to file a legal complaint. Am I right?
Yes, it can have value on court, but to achieve that you need to be sure that you don't have a pre-written TOS, but actually a good one.
Maybe instead of an organization/entity that will approve it.. Maybe all those website hosting companies should have general rule/guidelines regarding TOS or put it also on their TOS that will serve as guidelines for those website's owner and if the court find out that it didn't follow the rules/guideline then it'll be void. That rule should protect both website owner and website users, in this case both parties would be protected from having an abusive TOS and abusive website visitor. And if a website is hosted to a company that isn't legally registered as a legal company on each country, then all TOS of all the websites hosted there will be automatically be void. I think the problem is, There are no general rules when it comes on writing a website's TOS. It's like a gray area where website's owner can make a very BS tos that will protect him from all possible legal case down the road.
The courts have been ruling on web site TOS and have been creating rules. For instance, there has been a change in the way courts view and enforce the Terms of Service (TOS) and Privacy Policy (PP) of web sites. Previously, the courts have taken the view that a link to your PP or TOS will create an enforceable contract (called a “browser wrap†agreement.) This view was affirmed by then Judge and now Justice Sotomayor in her decision in Specht v. Netscape Communications Corp. However, on September 4, 2009, Judge Sterling Johnson of the Eastern District of New York changed that view with his decision in the case of Hines v. Overstock.com. In his decision, Judge Johnson has taken the view that merely saying that by using a web site you have agreed to its terms does not mean that the user has had reasonable notice to those terms. His view was that for the PP and TOS to be enforceable, the site user needs to indicate his acceptance of these terms by a manifestation of assent. It is my belief that this decision changes the previous law of “browser wrap†to a new level, the “click wrap†(i.e. the user clicks his consent.) While the opinion of Judge Johnson is not binding on all courts, I am of the belief that it will be embraced throughout the court system. His decision reminds me of the decision in Parker v South Eastern Railway, an English case from 1877, which every first year lawyer learns in their Contracts class. In that case, the jury decided that it is NOT reasonable to expect people to read the “contract†on the back of a railroad ticket. This case has never been overturned and is the law in the U.S., having been used as the precedent and cited in case law to include the back of movie tickets, parking lot receipts, coat check receipts, etc. Given this old precedent, I think the Hines case will quickly become the law of the land with lawyers arguing a browser wrap contract is no different than the back of a movie ticket. My recommendation: To make sure your users have constructive notice of the terms contained in your PP and TOS I strongly recommend that you use an “I agree†click button on your web site for your PP & TOS when your users register and (if a commercial site) again during the ordering process.
Thank you very much! attorney jaffe! Very well explained and very informative post! Now it's time to put an "I agree" button on my websites! Thanks for the tip Repped!