This note is only intended as a general overview and is not to be viewed as a substitute for legal advice. Brands & Bonds shall not be liable for any actions taken or not taken on the basis of this note.
The website owner running a blogging website get sued for millions by a user who had a life threatening experience while relying on some home remedies shared by another user on the blogging website. Another getting arrested for obscene content which was uploaded on his website by an unknown user. A website providing a platform for its users to buy and sell used goods gets sued by a user for fraud.
It is hard to find a Company or business without a presence on the World Wide Web these days. The penetration of internet and smart phones into the households even in rural area has witnessed a surge in the number of websites coming up online. An online presence would definitely be a boost for the business by reaching out to the millions of people who are online world-wide. However, the exposure can also backfire like the instances above.
A successful website not only requires pleasing and user friendly design but also well drafted Terms and Conditions (T&C) which to a great extent can mitigate unwanted liabilities. A website without a proper T&C could expose its owner to various liabilities and make them vulnerable as mentioned.
The T&C are the only legal agreement that governs the usage of the website which forms a binding contract between the website/business owner and the user. A well drafted T &C not only defines the terms on which the user can use the services of the website, but also to a great extent serve as a protection from various forms of liabilities which may arise. Website owner relies on the T&C to limit the potential liabilities and to define the rights and obligations of the users of the websites.
Terms of Usage or User Agreement of a website governs the rights, duties and obligations of a user and also defines the terms and conditions for using the website or its services. This varies according to business and/or the functionality of the website. Information Technology (Intermediaries guidelines) 2011 also mandates that such a User Agreement should specifically state that the user shall not post any malicious content including but not limited to obscenities, data belonging to another person, material intended to hurt the sentiments of people, religion and the country in general or effect the secularity, security of India - the list is not exhaustive. A well drafted User Agreement should contain at-least the following:
It’s always prudent to add a disclaimer to the website, and it usually forms part of the User Agreement. A disclaimer generally is a statement intending to specify or limit the scope of rights and obligations that may be exercised and enforced by parties in a legally binding relation. For example, in a blogging website, it is crucial to state that the content in the website is for information purpose only and the user discretion is expected while making a decision; and a disclaimer to the effect that the website acts only as a platform enabling its users to upload/sell contents/merchandise and that the website cannot be held responsible for any malicious or offensive content/defective goods is a must for a social media website or an e-commerce website.
However, it is to be noted that the mere presence of a Disclaimer in a User Agreement might not necessarily guarantee that such terms of the disclaimer will be recognised in a legal dispute. This to a large extend depends on the relevant and prevailing laws which are applicable.
One Size Fits All
Author - Anith James
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