A Website’s Terms of Use (ToU) are hosted on websites to inform website visitors how they can use the website and the liability of the website owner. However it seems that the more we see these lengthy, tedious and confusing legal mumbo jumbo, the less likely we are to read them, before clicking ‘I agree’. In fact sometimes, we are bound by legally enforceable contracts just by using the website.

Role of Website Terms of Use

A Website Terms of Use sets out the rules for how a person must use a website. They include information on how to use the site correctly, protection for intellectual property, what is prohibited and a disclaimer to limit liability. Other information may be more niche to the industry that the website belongs to, for example, information about how they deal with online orders, deliveries, returns and complaints, and the sharing of personal information to third parties could be relevant. While you may see common themes in website Terms of Use, across various industries, they should be unique to the website.

Are There Always Terms of Use on a Website?

If a site engages in selling goods and services, then they must state their business service standards and terms and conditions. This is a requirement under the Australian Consumer Law. However, many other online platforms also contain terms of use but are not necessarily mandated by law to do so, including blogs, social media sites and those websites that just offer information.

Legal Effect of a Website Terms of Use

When you click accept to a website’s ToU, it becomes a contract between you as the consumer, and the company or person responsible for the website. It is not a legal requirement for websites to divert the user to their ToU. However, courts tend to favour websites that do require the user to take an active step to acknowledge their acceptance of the websites terms. Why? Because sites that allow the user to review the ToU and then click ‘I agree’ demonstrates that the user had an opportunity to examine the terms of use before accepting them.

Should I Read a Website’s Terms of Use?

Getting into to the habit of checking a ToU will minimise the chance of suffering the effects of misunderstanding a binding contract. After all, taking a few extra (albeit arduous) minutes to skim over theTerms of Use may get you out of signing a much longer contract than you intended, or signing up to additional registration fees that were not pointed out to you.

Additionally, while consumer contracts, including those created online, are subject to protections from the Australian Consumer Law such as unfair terms, it is not a legitimate defence that you did not read the terms of use. Broadly speaking, you are bound by all the terms and conditions listed on the website, by agreeing to them (if you are prompted to), or simply using their website.

Key Takeaways

  • However dull, always read the websites terms of use;
  • You are bound by the website’s terms of use as soon as you agree to them or just by using their website – even if you have not read them;
  • It is not a legitimate defence that you did not know the terms of use of the website were unfair because you didn’t read them.

Overall, reading the terms of use of a website fits the ‘it is better being safe than sorry’ argument. If you have any questions about Website Terms of Use, including have one drafted for your website, get in touch with our IT lawyers.

Annie Gunn

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