What are the terms concerning comments etc submitted by users? Does the website own the copyright in comments?
The basic terms of use document includes a licence of copyright in user comments and other user content, rather than an assignment. One reason for taking this approach is that there are legal impediments to making an effective assignment of copyright (such as, assignments need to be signed by the assignor). Another reason is that users may object to relinquishing the copyright in their content.
The suggested licence states that the website owner may "use, reproduce, adapt, publish, translate and distribute" the content. You may want to cut back this licence to cover only those rights which are really necessary. For example, the right of adaptation can often be excluded.
To what extent am I protected by the website terms and conditions in the event that someone posts something illegal on my site?
This is not an easy question to answer in a few paragraphs. However, I'll try.
The default position under English law is that a website owner is the publisher of all the material on his or her website, including users' posts and other user content. So, the website owner may be liable for defamation, copyright infringement, etc in respect of user content in the same way that a paper-and-ink publisher may be liable for the contents of its books and magazines.
Subject to the comments below, terms and conditions will not usually be able to affect the legal position - the nexus of legal rights and obligations - between a website owner and a third party who does not use the website. So, you cannot use your website T&Cs to simply exclude all liability in relation to user content. However, terms and conditions may (as our template does) include warranties and indemnities from users that in principle allow an operator to recover losses from a guilty user if there is a third party claim. In practice recovery may not be practicable, for example because the user is impecunious or inaccessible or the size of the loss does not justify a secondary claim.
The harshness of the basic liability principle is mitigated by special defences under the UK's Ecommerce Regulations (derived from the EU's Ecommerce Directive). These defences may protect a website operator who is acting merely as a host of illegal material from "pecuniary remedies" and "criminal sanctions".
There are restrictions on the availability of this defence. Notably, the hosting defence is only available where the person who posts the illegal content is not acting under the authority of the website owner. Accordingly, website terms should make it clear that users are not authorised to post problematic content.
In relation to libel, website terms may also facilitate a defence under Section 1 of the Defamation Act 1996.
So, in summary, there are three broad ways that properly drafted website terms of use may help. They may:
- discourage users from posting unlawful content in the first place
- give operators a possibility of claiming losses arising out of a third party claim from the user who posted the unlawful content
- facilitate defences under the Ecommerce Regulations and Defamation Act
Disclaimer: this is a very brief account of a complex subject, and should not be relied upon in place of proper research and where appropriate professional advice. The extent to which any particular set of terms and conditions will give these protections to any particular website will depend very much on the particular circumstances.
How is it that a single template like this can be suitable for many different sorts of website?
To understand why the same template may be suitable for use in lots of different circumstances, we first need to understand what website terms and conditions do.
The legal nature of a website can be analysed using three broad, related categories:
- compliance requirements;
- risk profiles; and
- forms of legal relationship.
Compliance requirements refers to the requirements, almost always legislative rather than judicial, with which a website must comply. A failure to comply implies illegality of some description, and may in principle result in a criminal or other legal sanction.
Most compliance requirements are either informational or procedural - concerned, respectively, with the information that must be provided to users, and the procedural hoops that a website operator must jump through.
Most of the procedural hoops in English law relate to the process by which online contracts are entered into: what the operator must do before the contract comes into force, how the contract actually comes into force, and what the operator must do after the contract has come into force.
The risk profile of a website can be established by assessing the criminal law and civil law risks that the website operator faces. Examples of risks might include the risk of infringement action after the accidental posting of third party copyright material by the operator, or the risk of a complaint for defamation following a user posting comments critical of another person, or the risk of website downtime leading to a damages claim from subscribing businesses.
The analysis of risk can be tricky, because complaints may be infrequent, but any legal proceedings may have serious consequences (at least, financially).
The third key characteristic is the nature of the legal relationships the website creates. Is the operator-user relationship always or ever contractual? What responsibilities does the operator owe to the user, and vice versa? Does the website create any special legal relationships between users generally, or between different classes of user?
Website terms and conditions are affected by, and in turn affect, each of the characteristics. Ideally, they should help with compliance by containing some of the necessary disclosures, and by setting out some of the required procedures. They are also crucial to managing legal risks, for example by circumscribing operator responsibilities, narrowing warranties, and limiting or excluding potential liabilities. Finally, by clearly describing the rights and obligations pertaining to relationships between operators and website users, website terms and conditions both help constitute those relationships and reduce the scope for disputes between operators and users.
The most important factors in determining the legal characteristics of a website or web application are:
- functionality;
- user profiles; and
- subject matters,
in that order. Many websites have identical or near identical functionality - think of commonplace features such as home pages, internal and external hyperlinks, blog posts and blog comments, social media integration, Q&As, instructional videos, and so on. Each type of feature tends to have the same legal implications from website to website, providing the user profile (eg consumers resident in England) is similar.
For this reason, a set of general website terms and conditions such as these can be used, with limited adaptation, on a wide range of sites.
That said, there are many types of site for which this document will be either inappropriate or insufficient, and in those cases one of our website-specific sets of terms and conditions may be more appropriate.
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