Can you be sued for what you put on your website? The answer is yes. It happens all the time. As an website terms and conditions lawyer, I’m here to teach you how to protect yourself from lawsuits arising out of your website.
Let’s start by talking about what could you get sued based upon your website. First, let’s say that you are promoting products and services online. You’re selling, I don’t know, awesome white tee shirts and you say that your tee shirts are 100% cotton, they’re super stretchy, and the more that you wash them, they are going to retain their shape.
Someone that buys some clothes from your website, they believe that it does stretch over time or the materials aren’t right or that the pictures that you use on your website maybe don’t look exactly like the picture of the product that they got. They can sue you for misrepresenting your products and services on your website. So, you have to protect yourself from things that you say, do, and post online.
Secondly, and perhaps a bigger risk, is getting sued based upon what other people say and do on your website. Let’s say, for example, that you create a website where people can create profiles, they can interact with other people in a chat room, they can do business together by buying and selling goods. Let’s go back to the white tee shirt example. Let’s say that you created a website that’s an eCommerce website, where people can upload their own goods, sell them to other people, and you take a piece of the profit. It’s a pretty sweet deal.
But guess who is held responsible if someone believes a transaction between a buyer and a seller on your website went wrong? It’s you. And what if someone says that they were harassed online or that their information was stolen from a credit card processor or that they were stalked because there was a conversation that happened in a chat room and someone is now going after somebody else based upon what happened on your site? Guess who’s going to be held responsible? You, as the website owner.
I know that that sounds unfair. I know that that sounds crazy, but that’s just the nature of how things work these days. If you’re going to decide to run a website, then you need to protect yourself. It doesn’t matter if you have a small website that might just promote your own products or services, or if you create some complex site where people can create profiles, interact with others, and have eCommerce components on there – you’ve got to protect your website in either case.
What can you do to protect yourself from website lawsuits? There are really two main things that you need to do. The first thing is, if you’re going to run a website, you have to have that website owned by your business. What do I mean by that? Let’s go back to my example about the white tee shirt. Let’s say that I, Ethan Wall, social media attorney, as an individual, bought, I don’t know, a thousand of these white tee shirts and sell them online, but I didn’t create a business.
If someone wants to sue me arising out of the transaction involving my shirts, I’m going to be personally liable. They could come after my personal assets, my car, my home, jeez, my white tee shirts!! Don’t come after those. So, you want to make sure that, not only are you running a business like an LLC or a corporation, something that’s going to insulate you personally from liability, but you better make sure that your website, as an asset, is owned by the company itself. Therefore, you’re not going to be held personally responsible for any liabilities that arise out of your business and even your website.
But what’s the second thing that you need? Website terms and conditions. This is the same if you run a website or if you run a mobile application, we’ll call it a mobile app terms and conditions. Your terms and conditions are that fine print that’s all the way at the bottom of your website. But this fine print has BIG legal implications and what I mean by that is this. Your terms and conditions are essentially a contract with your website users.
If you don’t have website terms and conditions, then you have nothing to protect yourself. If you do have website terms and conditions, then you can set what are the rules for using your website. These can be things like limiting your liability, saying that you’re only going to be responsible for maybe the cost of a transaction. So, if you think something went wrong, all you could do is get the value out of what somebody paid for your shirt. So, your liability is limited to maybe 50 bucks for your tee shirt.
You can include hold harmless provisions. Say, “Look, if you want to use my site and you want to create a profile and you want to interact with others, fine, but you are holding us, as the website owner, harmless for any losses, risks, or liabilities out of your website.” You can also prevent people from suing you, meaning you can say if there’s a dispute involving what happens on my website, no matter where you live, you can’t file a lawsuit.
In those situations, you would instead require people to file for arbitration in the state where your business resides, even in your home county, which might prevent people from filing grievances in the first place. Or if they try to sue you in Alaska, you can get that lawsuit dismissed and say that the rules were governed by your terms and conditions that says actions must be in Florida. So, it’s so incredibly important that you have website terms and conditions to prevent you from being sued arising out of your website.
Now, having website terms and conditions is good, but figuring out how to place the website terms and conditions on your specific site is important. What I mean by that is it’s good to have it on the bottom of the site, but it is better if people accept your website terms and conditions as part of the process of using your site.
So, how could you do this? If you are an eCommerce site, perhaps people have to agree to your terms and conditions prior to making a transaction. If you have a site that allows people to create profiles, they’re going to have to agree to your terms and conditions by clicking a checkbox prior to being able to create a profile. So, that’s a better way of doing it. But depending upon how your site is set up, having website terms and conditions is better than not, and having people agree to them is better than just having on the bottom of the site, even though it’s still good to do so.
What’s the last thing that you’re going to need as a website owner? It’s a privacy policy. A privacy policy is a legal statement that’s going to tell people how you use their personal information. It’s going to tell people what information you collect, how you collect that information, how you plan to use it, and how they can opt out. This is incredibly important in today’s day and age for a few reasons.
One, the European union has their own privacy laws, two, California has their own privacy laws, and three, new states are getting privacy laws all the time, so you want to be able to get ahead of this. And so, by having a privacy policy and telling people how you collect their information, what you do and how they can potentially opt out, you can comply with all of those laws.
Now, what you put your privacy policy depends upon what your website does, meaning if you collect payment information, profile information, personal information, you need to tell people that. If your website uses cookies to collect information, you need to tell people that, and then how you plan to use it. So, tailoring your privacy policy to your website’s incredibly important.
Now, you might be saying, “Ethan, okay, this sounds good. I’m going to go to Google right now and just copy their website terms and conditions and privacy policy because they must’ve hired some high profile expensive lawyers. Doesn’t that sound like a good idea?” The answer is no. Why? Two reasons. First, you’re committing copyright infringement because you’re copying their stuff and you’re putting yourself at risk by trying to prevent yourself at being at risk. So, that’s just silly, don’t do that.
But the bigger reason is that when you copy someone else’s website terms and conditions, they’re not tailored to your site. They’re not tailored to your specific risks and you might be putting yourself at more harm in doing so than helping. I recall one person who copied Google’s terms and conditions. Their business was located in Massachusetts and when they got sued they had to defend a lawsuit out in California because that’s where their forum selection clause said in their terms and conditions.
So, it’s not a good idea to copy somebody else’s. It’s better to write yours from the beginning and we, here at The Social Media Law Firm, would be more than happy to help you with that if you need a terms and conditions lawyer.
At the end of the day, you could be sued for what happens on your website, whether you put that on there or somebody else. So, you have to have website terms and conditions and a privacy policy in order to protect yourself from risk. You should have your website owned by your business to insulate yourself from personal liability.
So, if you need help drafting the terms and conditions or privacy policy for your business, well, here are The Social Media Law Firm, it would be a pleasure to help you as well. Just reach out to us below.
