Terms of Service, Terms of Use and Privacy Policy Enforcement

Internet Attorney Discusses Enforceability of Website Agreements: 

Should you use a website agreement forms service or have a website agreement lawyer draft your website agreements?  We get calls from prospective clients each week asking us to draft a terms of service (TOS), terms of use (TOU) and privacy policy agreements for their websites.  An internet lawyer knows how to draft an effective on-line or website agreement depending on the purpose of the website, the business model and a variety of consumer issues.  The goal of any attorney drafting a terms of service, terms of use or privacy policy for a website is not only to protect the website owner/operator, but to increase the probability that a court will ultimately enforce the agreement terms against website visitors, registered users or other third parties interacting with the website. 

We are often asked how courts are handling contract issues on the internet.  Unfortunately, there is little precedent to guide lawyers or courts in the handling of internet agreements.  Here are some common defenses which consumers will raise in order to avoid a particular contract term:

1. A website visitor can argue that there is a failure of contract due to mutual assent;
2. The entire contract or any specific contract term may be unconscionable as a browsewrap or clickwrap “contract of adhesion” that is unduly one-sided;
3. The terms of service, terms of use or privacy agreement may be a violation of the “reasonable expectations doctrine” if there is a low level of notice to the terms and conditions.  In this instance, the court will consider public policy concerns against tricking consumers and invading their privacy;
4. The terms of service may violate consumer protection laws or unfair business practice statutes;
5. The terms of use may breach a duty of good faith and fair dealing or otherwise be considered deceptive;
6. To the extent the marketing message on the website is inconsistent with the terms of service or terms of use, the court may find that consumers reasonably relied on the marketing language; and 
7. The terms of service could be struck down as a violation of public policy outright under several theories relating to consumer oppression, protecting privacy rights or other policy considerations.

From the website operator’s side, you want to make sure that your terms of service or terms of use protect you from liability while at the same time will withstand a challenge in the court to enforcement. 

From the consumer’s side, just because a terms of service or privacy agreement says “you lose”, doesn’t necessarily mean the will enforce that particular provision.