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  1. #1
    SitePoint Zealot
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    Privacy Policy? Terms of Usage?

    I'm creating a site that is going to collect data from users. It's a classifieds. Users will be able to upload pictures videos and other forms of content. How do i protect myself or my company in terms of legal issues. What documentations will i need? I'm kinda lost and i don't know where to even begin.

    Any help is greatly appreciated
    Jaysone

  2. #2
    Barefoot on the Moon! silver trophy Force Flow's Avatar
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    First hit on google brought this up: http://www.freeprivacypolicy.com/

    It generates a privacy policy based on what you select, then emails you a link to retrieve it.

    I did a quick run-through and it seems to look legit.

    Lots more on google to help get you started:

    http://www.google.com/search?q=privacy+policy+template

    http://www.google.com/search?q=privacy+policy+generator

    http://www.google.com/search?q=terms...licy+generator

    http://www.google.com/search?q=terms...olicy+template

    Also, take a look at the ToS and privacy policy agreements on well known sites that provides similar services. That should give you a general idea of what kinds of things to include.
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  3. #3
    SitePoint Wizard silver trophy
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    As Force Flow pointed out, there's many sites that will give you free templates for privacy policies & terms of service which can be a start.

    That said, it's more than just a document that you need. Depending on what you are doing you may have significant liability risks and certainly have some risk with any site. While templates are useful, they don't replace expert advice and one little omission can come back to haunt you, as can a stipulation due to the laws of your particular state / country.

    Furthermore, these documents only serve as a part of protection. You may want to invest in a corporate formation to further shield yourself, may need regulation approval and many other factors. It's not that you have to get an attorney to run a site but the larger your plans are, the more transactional your site is, the better sense it makes to do so.

    You'll find good advice on a forum around the general ideas but even the lawyers who comment here don't replace direct advice from counsel so read up, try the template sites and see if that is enough for you to feel covered -- if not, there's many firms who specialize in these types of documents.
    - Ted S

  4. #4
    SitePoint Enthusiast
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    I know that this post may seem self serving, but I counsel my clients not to use legal forms they simply generate on the web.

    First of all, I have found most of these generators are out of date, and not up to speed on the changes occasioned by new decisions. My favorite example of this is that most generators use a browser wrap and not a click wrap. More and more, courts are insisting on a click wrap to find the contract enforceable.

    Click Wraps and Browser Wraps – Recently there has been a change in the way courts view and enforce the Terms of Service (TOS) and Privacy Policy (PP) of web sites. Previously, the courts have taken the view that a link to your PP or TOS and a statement that by using this site you agree to the terms and conditions will create an enforceable contract (called a “browser wrap” agreement.)

    However, the decision in the case of Hines v. Overstock.com took the view that merely saying that by using a web site you have agreed to its terms does not mean that the user has had reasonable notice to those terms. His decision was that for the PP and TOS to be enforceable the site user needs to indicate his acceptance of these terms by a manifestation of assent. It is my belief that this decision changes the previous law of “browser wrap” to a new level, the “click wrap” (i.e. the user clicks his consent with an “I Agree” button.)

    While the opinion of Judge Johnson is not binding on all courts, I am of the belief that it will be embraced throughout the court system. His decision reminds me of the decision in Parker v South Eastern Railway, an English case from 1877, which every first year lawyer learns in their Contracts class. In that case, the jury decided that it is NOT reasonable to expect people to read the “contract” on the back of a railroad ticket. This case has never been overturned and is the law in the U.S., having been used as the precedent and cited in case law to include the back of movie tickets, parking lot receipts, coat check receipts, etc. Given this old precedent, I think the Hines case will quickly become the law of the land with lawyers arguing that a browser wrap contract is no different than the back of a movie ticket.

    To make sure your users have constructive notice of the terms contained in your PP and TOS we strongly recommend that you use an “I agree” click button on your web site for your PP & TOS when your users register and (if a commercial site) again during the ordering process.

    Further, while a generated policy may have the right words, you need to understand that your TOS and Privacy Policy (PP) are contracts with your visitors. You need to understand not only what the visitor's obligations are; but more importantly what your obligations are concerning your site.

    If you do not fulfill your obligations, which are many and require written documentation of your actions, you will be liable for breech of contract.

    Working with an attorney knowledgeable in the area of Internet law will not only get you policies that are up to date, your attorney should work with you to understand the obligations imposed on both you and your visitor.

    It is this interaction with your attorney in understanding what is contained in the policies that provides the value in using an attorney. Having that understanding is far more important than just putting the words generated on a page and thinking you are protected.
    Andrew M. Jaffe
    Attorney at Law
    attorneyjaffe@aol.com
    330-666-5026 www.netlaws.us


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