The Importance of Well-Drafted Website Terms and Conditions

website terms
Print Friendly, PDF & Email

The United States District Court for the Southern District of New York recently issued a ruling that exemplifies the importance of well-drafted website Terms and Conditions. In Stephanie Sinclair v. Ziff Davis, LLC and Mashable, Inc., 1:18-cv-00790 (SDNY, April 13, 2020), the Court ruled that because Stephanie Sinclair (“Sinclair”) had agreed to Instagram’s Terms of Use, Mashable, Inc. (“Mashable”) was allowed to embed Sinclair’s photograph on its website as a sublicensee, without separately obtaining Sinclair’s permission. This case illustrates that, when drafted correctly, website Terms and Conditions can save website owners from lengthy and expensive litigation. 

How can website Terms and Conditions help protect your website?

What Are Website Terms and Conditions?

Website Terms and Conditions are the contract between website operators and the end user visitors to, and customers of, the site. Among other constituent provisions, website Terms of Use: 1) describe the functionality of the website, and its underlying product and service offerings; 2) outline applicable payment terms and methods for canceling accounts; 3) detail general disclaimers, and website-specific disclaimers depending on the nature of the website and the underlying content/offerings; 4) define any applicable age restrictions; 5) include Digital Millennium Copyright Act (“DMCA”) safe harbor language; 6) limit the liability of the website owners; 7) allocate ownership/licensure of intellectual property posted on the site; 8) state how website owners can suspend or terminate users that violate the Terms and Conditions; and 9) set forth the governing law that applies should there be any dispute arising out of use of the subject site. 

Creating a Binding Website Agreement

Merely having website Terms of Use does not necessarily create enforceable agreements with website users. Terms and Conditions that require users to take proactive steps, such as checking a box and clicking “submit,” also known as “click-wrap” agreements, are far more likely to be upheld in courts of law. Comparatively, website Terms of Use that do not require that users take an affirmative action towards acceptance, known as “browse-wrap” agreements, are less likely to be enforced by the courts. To ensure enforceability, website owners should prominently display links to their Terms and Conditions and prompt users to take some sort of affirmative action that manifests assent to the agreement terms. 

The Sinclair case highlights how crucial well-drafted website Terms of Use are. By way of background, Mashable had offered Sinclair fifty dollars ($50.00) to license her “Child, Bride, Mother/Child Marriage in Guatemala” photograph for a story that they planned to run on female photographers.  When Sinclair declined Mashable’s offer, Mashable proceeded to access Sinclair’s public Instagram account, there copied her photograph, and subsequently embedded her Instagram post into its story. In response, Sinclair sued Mashable and its publisher, Ziff Davis, LLC, for copyright infringement. The case was dismissed by the Court on the grounds that: 1) Sinclair had agreed to Instagram’s Terms of Use, which granted “Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the content” that Sinclair had posted on Instagram; and 2) Mashable was able to prove that it had obtained a valid sublicense from Instagram prior to using the photo.  

Website owners who fail to include the appropriate intellectual property licenses in their Terms of Use may get dragged into costly litigation over, among other things, ownership of user posted content. Numerous other problems can be avoided by employing a well-drafted and comprehensive set of website Terms and Conditions. Given the foregoing, it is highly recommended that website owners retain competent legal counsel to ensure that their Terms and Conditions are both thorough and enforceable. 

If you are interested in learning more about this topic or require Terms and Conditions for your website, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900. 

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney. 

Attorney Advertising

Similar Blog Posts:

Mobile App Terms and Conditions for End-Users

Privacy Policies and the California Consumer Privacy Act (CCPA)

Website ADA Lawsuit Filed Against Golden State Warriors

David O. Klein

David O. Klein

David Klein is one of the most recognized attorneys in the telemarketing, technology, Internet marketing, sweepstakes and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

Schedule a Call
In The Know

Trending Topics

New York Sweepstakes Law blog- Klein Moynihan Turco

New York Sweepstakes Law: Are You Compliant?

Print Friendly, PDF & Email

In general, a lottery exists when entrants pay for the chance to win a prize. States alone reserve the right to administer lotteries. Businesses can eliminate one element of what would otherwise be an illegal lottery, in order to transform it into a legal promotional game. If the requirement to

TCPA surveys

An Ad or not an Ad: NY Weighs in on TCPA Surveys

Print Friendly, PDF & Email

Another day, another court decision that refines constitutes a Telephone Consumer Protection Act (“TCPA”) unsolicited fax advertisement. A Manhattan-based federal court recently issued a decision that removes faxed invitations to participate in a survey from the TCPA definition of advertisement. In drawing this distinction for TCPA surveys, the Court held

NY sports gambling law- Klein Moynihan Turco

Agreement Reached to Enact NY Sports Gambling Law

Print Friendly, PDF & Email

This week, Governor Andrew Cuomo and the New York State Legislature agreed to a budget deal that will bring mobile sports betting to the State through a unique NY sports gambling law.  Upon the Governor’s signature, NY sports gambling is primed to become the nation’s largest market. However, New York

UK and US Social Media Influencer Laws

UK and US Social Media Influencer Laws

Print Friendly, PDF & Email

In September of 2020, the United Kingdom’s (“UK”) Committee of Advertising Practice (“CAP”) reviewed the Instagram accounts of 122 UK-based social media influencers to determine whether content was being properly flagged as advertising in accordance with applicable social media influencer laws. This past March, the UK Advertising Standards Authority (“ASA”)

Share on facebook
Share on google
Share on twitter
Share on linkedin