The Importance of Well-Drafted Website Terms and Conditions

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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, 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. 

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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.

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