Keeping your business compliant online: terms of use and the Online Safety Act 2023
When your business has an online presence, it is advisable to adopt website terms of use (often referred to as website terms and conditions) to effectively protect both your website users and your business. While it is not a general legal requirement to display terms of use on business websites – although it is good practice – the Online Safety Act 2023 is now in force and applies to ‘regulated services’ (mainly user-to-user and search services). If your site offers user-to-user functionality (for example, comments or messaging), your terms may form part of your compliance with the Act and Ofcom’s online safety codes; many purely informational business websites without such features, are outside scope. Let’s have a look at what well-drafted website terms of use may help you achieve.
Restrict content reproduction
Your website terms of use could outline what visitors may do with the content of the site. You should specify that you reserve your rights over any posted content and that any unauthorised use of such content is a breach of the terms. If you choose to grant your website visitors the right to print and download extracts from your website, you should clearly explain the scope of that right. This is your opportunity to restrict any unauthorised reproduction of materials and affirm that all rights (including any intellectual property rights) belong to the website owner, whose identity and contact details should also be clearly set out.
Manage linking
Website terms of use should also say whether or not you permit linking to your site. You may, for example, permit linking to the site, provided it is done in accordance with both certain conditions and the linking license, a copy of which could be posted on your website to ensure clarity.
Impose obligations
As a website owner, you may want to impose certain obligations on your website visitors. For example, you may require your users not to share their passwords with anyone else to prevent internet fraud. Also, you may (and should) require that they do not post any illegal or harmful content on your site as, apart from the damage to the reputation of your business, such content creates liability risks for your business. When the Online Safety Bill comes into force, website operators may also be liable for any failure to have effective systems and processes in place to prevent the posting of illegal or harmful content.
Disclaim liability
It is important for the website owner to disclaim any liability for the content or performance of the website. Even if you have not deliberately included any wrong information on your website, your site may contain some content that is out of date or incorrect. A concise disclaimer would help you limit your liability in case a visitor relied on such information and raises a liability claim against your business. There are further liability disclaimer considerations that you should take into account when your business sells goods or supplies services via the site.
Data protection
Website owners have extensive obligations under data protection laws in respect of personal data that they collect. The Data Protection Act 2018 (DPA 2018) requires personal data to be processed lawfully and fairly, and on the basis of the data subject’s consent. Your website terms of use may refer to your privacy policy, however, all details relating to data collection and processing must be dealt with in a standalone privacy policy that is specific to your business operations and (ideally) accessible on your website.
Cookies policy
Many website operators choose to enable cookies on a website to gather information about users’ activity and preferences to improve website functionality, provide security and expand direct advertising. To comply with UK and EU data protection legislation, you, as a website provider, must provide a clear and visible notice to users detailing the different types of cookies. This is often achieved through a pop-up when entering the website, a message bar, or a banner on the first page. Consent requirements also apply to those cookies used by third-party providers included on your website, such as social media platforms. Website users should be able to accept or reject non-essential cookies as easily as accept them (for example, an equally prominent ‘Reject all’ on the first layer). Strictly necessary (essential) cookies don’t require consent, but explain them clearly.
Your website terms of use go hand in hand with a separate cookies policy outlining the use and function of cookies in greater detail, with best practice being to provide a link to the separate cookies policy for users to review.
Ensure acceptance
There is no one way to share the terms of use with your website’s visitors. You may decide that all visitors should be first prompted to accept your terms by clicking an “accept” button before being permitted to move around your website. Alternatively, you could choose to post your website terms of use on your homepage and incorporate a prominent notice on the homepage stating that, by using the site, the visitors are deemed to have accepted them.
Comply with the Electronic Commerce Regulations 2002
The Electronic Commerce Regulations 2002 establish certain requirements for online businesses selling goods or services on their websites. For example, such websites must contain full company and contact details, registration details, relevant supervisory authority, and VAT number, along with other types of information set out in the regulations. Your website terms of use may be the best place to include such information and comply with those legal requirements.
Website terms of use are an important part of your online presence. Knowing how to effectively protect your content and your intellectual property rights, promote your company, limit your liability exposure and comply with applicable legislation is the foundation for successfully running your business.
At Maybrook Law, we advise on all aspects of online business compliance, including the drafting and implementation of website terms of use and navigating obligations under the Online Safety Act 2023. We work closely with our clients to ensure that legal frameworks are practical, proportionate, and aligned with their commercial objectives. If your business operates online – or is planning to – or you would like to discuss any of the issues raised in this article, we would be pleased to advise on your position.