opinion

Stop ‘Borrowing’ Website Terms and Legal Disclaimers

Corey D. Silverstein

During the past decade, I have had the honor and privilege of speaking at tradeshows across the U.S. and Canada with some of the brightest entrepreneurs and many respected legal practitioners.

I have spoken about various legal and business issues that the adult industry faces on a daily basis and at many of my presentations, I have taken a few minutes to remind members of the online adult industry of various things that can be done to stay out of trouble.

It is self-destructive to ‘borrow’ another website’s privacy policy and website operators should be consulting with legal counsel to learn what and what not to include in the website’s privacy policy

One of my regular messages at tradeshows is to urge members of the online adult industry to stop “borrowing” the terms and legal disclaimers of other websites.

All online businesses should have terms and legal disclaimers but for those websites that depict sexual or adult themed material, having proper terms and legal disclaimers is even more critical.

For those websites that are attempting to be legally compliant, some of the most commonly seen terms and legal disclaimers are: Warning Page, Terms of Service/Use, Privacy Policy, Cookie Policy, 18 U.S.C. § 2257 Compliance Statement, Acceptable Use Policy, Affiliate Agreement, and Digital Millennium Copyright Act (“DMCA”) Notification Instructions.

The specific nature and content of a website along with applicable law will dictate which terms, policies and legal disclaimers a website should have. Each different product or service that a website offers may require specialized provisions in the website’s terms and legal disclaimers that are not found in “form” or someone else’s “borrowed” terms and legal disclaimers.

The mistake of “borrowing” terms and legal disclaimers has been common practice since the birth and growth of the online marketplace. The fact that a large volume of my clientele are website operators has given me a front row seat to this epidemic.

In this age of privacy issues, cybersecurity, and the crackdown on child exploitation, it is alarming how many people still think that it is safe and acceptable to simply “borrow” another website’s terms and legal disclaimers.

Despite the everyday legal headlines involving criminal charges and civil lawsuits involving online businesses, too many website operators continue to fail to learn from the mistakes of others and do not take adequate steps to protect themselves through the use of terms and legal disclaimers.

Those website operators that have hired legal counsel to draft their terms and legal disclaimers, know that the process of drafting terms and legal disclaimers takes time and costs a few bucks.

The creation of a proper set of terms and legal disclaimers will typically involve a considerable time commitment with counsel to discuss, draft, and re-draft the various documents. Terms and legal disclaimers written by lawyers are generally drafted for a specific website that offers its own products and services.

What this means is that one website’s terms and legal disclaimers may have provisions that are totally inapplicable to another website or may not contain something that another type of online business would need.

The topic of this article was not randomly selected. This topic was selected because in the past few years and months I have witnessed a substantial number of instances where website terms and legal disclaimers have been “borrowed” from another website and the borrower ends up in serious peril.

For illustration purposes, here is an example of a situation where the “borrowing” of a website’s terms and legal disclaimers can lead to disastrous consequences.

Website ‘A’ operates a website depicting sexually explicit content that also allows user submitted content. Website ‘A’ wisely decided that legal counsel was a necessary expense and spent a tremendous amount of time perfecting its website terms and legal disclaimers by collaborating closely with its legal counsel. Website ‘B’ was created a few months after Website ‘A’ by a solo individual without the assistance of legal counsel. Website ‘B’ launched a “copycat website” of Website ‘A’ and “borrowed” Website ‘A’’s code, including its terms and legal disclaimers. When Website ‘B’ copied Website ‘A’’s terms and legal disclaimers, Website ‘B’ didn’t even bother to change the contact information listed on the terms and legal disclaimers; thus Website ‘B’’s terms and legal disclaimers indicated that Website B was being operated by the entity listed on Website ‘A’. A few months later, a city level law enforcement agency was conducting an investigation involving an individual portrayed in a video located on Website ‘B’. The detective leading the investigation sought a subpoena to obtain information related to the video on Website ‘B’. Due to Website ‘B’ misidentifying its operator (as a result of “borrowing” Website ‘A’’s terms and legal disclaimers) the Detective prepared a subpoena misidentifying the operator of Website A and named the operator of Website ‘A’ as party of interest in his investigation. Fortunately for Website ‘A’, legal counsel was able to demonstrate that Website ‘B’ had “borrowed” Website ‘A’’s terms and legal disclaimers. In this example, Website B’s conduct not only frustrated an active criminal investigation but Website B’s actions also led to Website ‘A’’s operator being misidentified and placed on law enforcement’s radar for no reason whatsoever.

People often fail to understand that terms of service/use (so long as they are properly implemented) are legally binding contracts. I am frequently disturbed that people still wrongfully believe that terms of service/use are “forms” or “boilerplate” that are applicable to any website, despite the fact that spending a few minutes on Google will reveal horror stories involving “borrowed” terms of service/use.

One of the most common situations is a website binding itself to the laws and courts of a jurisdiction that they never desired to be bound by or subject to. The laws and regulations from jurisdiction to jurisdiction can vary tremendously and a website that “borrows ”someone else’s terms of service/use may inadvertently subject itself to laws and a jurisdiction that are unfavorable or unwanted. I have seen this mistake made time and time again.

When it comes to data privacy and security, more specifically privacy policies, the law has never been more complex; especially in the U.S. and throughout Europe.

Various states in the U.S. have enacted their own complex privacy protection laws (including California (Calif. Bus. & Prof. Code §§ 22575-22578), and Delaware (Del. Code Tit. 6 § 205C)) and in fact at least two states (Nebraska (Nebraska Stat. §87-302(14)) and Pennsylvania (18 Pa. C.S.A. §4107(a)(10)) have laws that make it illegal to make false or misleading statements in website privacy policies.

It is self-destructive to “borrow” another website’s privacy policy and website operators should be consulting with legal counsel to learn what and what not to include in the website’s privacy policy.

Throughout this article I have referred to the act of stealing the terms and legal disclaimers of another website as “borrowing.” Make no mistake about it, the act of “borrowing” someone else’s terms and legal disclaimers is stealing someone else’s material that they spent time and money on, but the fact of the matter is that when you steal someone else’s terms and legal disclaimers, in the long run you are only putting yourself at risk.

Taking the time to consult with an attorney of your choosing before publishing terms and legal disclaimers on a website is more critical than ever before. A single sentence contained in a set of a website’s terms or legal disclaimers can result in substantial consequences on your legal rights and obligations. Take the time to talk to your lawyer to make sure that you fully understand and agree to the legal agreements that you publish on a website. I can guarantee that if you “borrow” someone else’s terms and legal disclaimers and it ends up resulting in legal problems, the “but everyone else is using these standard terms” defense won’t get you very far.

This article does not constitute legal advice and is provided for your information only and should not be relied upon in lieu of consultation with legal advisors in your own jurisdiction. It may not be current as the laws in this area change frequently. Transmission of the information contained in this article is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver.

Corey D. Silverstein is the managing and founding member of the Law Offices of Corey D. Silverstein P.C., which focuses on representing all areas of the adult industry and his clientele includes hosting companies, affiliate programs, content producers, processing companies, website owners and performers, just to name a few. Silverstein can be reached by email at corey@myadultattorney.com; his site, MyAdultAttorney.com; or by telephone at (248) 290-0655.

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