By John M. Persinger

Does your website have a terms of use?

Do you know if these terms of use protect your business?

A recent Federal court lawsuit involving Facebook underscores the importance of having terms of use for your website.  Facebook's terms of use require a user to give his/her consent to Facebook to use his/her name and likeness.  A group of minors sued, alleging that this consent was invalid because they were underage.
 
Despite this argument, the Federal court upheld the dismissal of the lawsuit.  The court found that Facebook's terms of use served as a valid agreement between Facebook and the minors and that the minors agreed to these terms of use when registering with Facebook.  As a result, the minors had to validly disaffirm the agreement.  By registering for the website, the minors failed to validly disaffirm the agreement.  Furthermore, the court found that the minors constantly reaffirmed their acceptance of these terms of use each time that they visited the site.  Thus, the court found that Facebook had consent to use the minors' names and likenesses.
 
This lawsuit is an important reminder for businesses.  Courts will view your terms of use as valid agreements between website owners and the individuals who visit or register for that website.  In other words, the terms of use is a binding contract.  Therefore, if you own a website, it should have a terms of use.  Each terms of use will be unique to that particular website and the particular website owner, so don't simply cut-and-paste from Facebook or Amazon or Google.  However, there are some standard provisions that should be included in every terms of use, including the following:
*    Limitations of Liability;
*    Indemnification; and,
*    Stipulations on the location and timing of lawsuits.
 
If you are in need of a terms of use for your website or if you have questions about one, contact a member of MacDonald Illig's Emerging Technologies Practice Group.
 
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