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Privacy Policies and Terms of Use Issues for Web Publishers

Freedom of Speech for Web Publishers and Citizen Journalists

Privacy Policies and Terms of Use Issues for Web Publishers

How visible does a privacy policy or terms of use need to be? And more importantly, will your privacy policy hold up in court?

Web publishers routinely offer features or information with limited use requirements.

Let's say you support your content by offering a free download of an app you developed to enhance your viewers' online, brand experience. Although you want them to use the app to enjoy your content, you don't want them to modify the app or sell it to other users. So how do you legally protect the fair use of your offering?

That's where privacy policies and terms of use mechanisms come into play. By displaying highly visible legal language on your site, you can restrict its use or exploitation in the marketplace. But here's the catch: Not all policy and terms of use vehicles afford the same level of legal protection. In fact, some mechanisms offer the same legal protection as having no mechanism at all.

As a web publisher or online business owner, it's in your best interest to learn about the various types of privacy policy and terms of use vehicles that are available. Even more importantly, you'll need to understand how you can use these vehicles to legally protect your intellectual property, software applications, and user information.

Clickwrap Agreements

A clickwrap or click-through agreement is a mechanism that requires the user to take a specific action, acknowledging they have seen the site's privacy and terms of use policies. These agreements are very common in software releases and upgrades, but are also appearing on many online publishing sites. The advantage of a clickwrap agreement is that it affords the publisher a high level of legal protection. The courts consistently reward clickwrap agreements because the user's action (click) serves as an active acknowledgement of consent. If the user clicks the "do not accept" button, the content or features covered by the agreement are made unavailable.

Browse-wrap Agreements

Browse-wrap agreements are a double-edged sword for online publishers. Many publishers prefer browse-wrap agreements (versus clickwrap agreements) because they are less intrusive and enable smoother navigation. Many users are intimidated by clickwrap agreements and will simply navigate away from the site rather than taking the step of an additional mouse click. But the problem with browse-wrap agreements is that they are legally vulnerable. Although the courts have determined that browse-wrap terms and policies are enforceable, they closely scrutinize their location to make sure they are featured prominently in the site architecture. Since many publishers use browse-wrap agreements to meet the terms and conditions requirements for Google Adsense, you'll want to make sure your browse-wrapped policies are readily viewable by your site's users.