The Privacy Lawyer: Get Real About Your Terms-Of-Service Agreements

Whew! Most lawyers would need help understanding this provision. What hope does a consumer have? Without an affirmative acceptance, or click-through, it's very possible that this provision may not be upheld in a court of law.

A terms-of-service policy should, at minimum, be easy to find. You don't have to put it in bold text, but it should be at least in the same location, color, and size as other policy links. Most such links reside on the bottom of each page. Hiding a policy can only hurt its enforceability.

One of the hardest-to-find terms-of-service agreements I've ever come across is used by a music-download Web site. Its terms of service can only be found if you click on the site's privacy policy and read through it. There, buried in the fine print, is a reference to the terms of service that apply to all users of the site. It can only be accessed, even then, by clicking on a link in the text of the privacy policy.

That's three steps to learn what the rules for the site entail: one to access the privacy policy (linked to from the front page at the bottom); a second to read it through and find a reference to the terms of service; and a third to click on that link and read it through. The more steps site users have to take and the harder they have to look to see what applies to them, the more likely a judge may find fault in the legal notice and acceptance of its terms. A clear element of an enforceable contract is a meeting of the minds. It's difficult to prove that there was a meeting of the minds if the terms are tucked away a few levels down.

Of course, even if the terms of service or use may be easily found, there's still no guarantee that they'll be enforced without more precautions being taken. A good approach is to make the important items clear. It may help to include a statement on any click-through for registration, E-commerce, or communication indicating that the terms of service have to be agreed to for the person to be able to continue. Given the habit of most consumers to merely click on "I accept," this would give you the protection you seek and not adversely affect the site/consumer relationship. For those consumers who do read the terms of service, it ensures that they know what policies control the use of the site. While not a guarantee of enforceability, both make it more likely that a judge will uphold your agreement and protect your rights.

Parry Aftab is a cyberspace lawyer, specializing in online privacy and security law, and she's also executive director of WiredSafety. She hosts the Web site aftab.com and blogs regularly at theprivacylawyer.blogspot.com.

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