Question
What is the difference between a Terms of Service and Privacy Policy?
Answer
Terms of Service (also known as Terms of Use or Terms and Conditions) is an agreement between you and your users where you establish the rules governing your website or mobile app. A Privacy Policy is a notice to your user’s regarding the type of information that your business is collecting and using. Think of it this way: Terms of Use are the user’s promises to you, and the Privacy Policy is your promise to the user!
Terms of Service
Although a Terms of Service is not legally required, it is important to note that almost every website or mobile app has one. So there must be a good reason why all these businesses have implemented this policy…right? Definitely! Put simply, creating a Terms of Service protects the business, because it allows a business to set its own rules (within reason) and enter into a legally binding agreement with its website users. This policy lays out the users’ rights and restrictions on how the website can be used, while also simultaneously limiting your liability.
For example, a company selling products on their website or app could include some of the following things in their Terms of Service:
- Payment details for purchases;
- Return and refund policy information;
- How the website can be used and what is considered misuse;
- “Disclaimers and warranties” (which are just fancy words that mean “promises”) for the goods and/or services offered.
Whereas, a company that allows users to submit their own content (such as comments, photos, etc) would likely also want to include provisions regarding:
- How they plan on moderating content (if at all);
- Suspension and termination procedures in the event of misconduct from the user;
- Intellectual property notices and DMCA takedown information
Privacy Policy
Federal and state laws (including California law) require privacy policies from any person or entity that collects and maintains “personal information.” Generally, “personal information” can be defined as data that might directly or indirectly identify an individual user or household. A few common examples of personal information that many businesses collect include a user’s: name, email address, mailing address, and IP address. Basically, if you are collecting information from your online visitors (like collecting email through a newsletter sign up form!), a Privacy Policy is a required step towards legal compliance.
Privacy laws often revolve around the ideas of notice and consent. Essentially, a Privacy Policy puts your users on notice about the personal information that you are collecting, using, disclosing, sharing, and storing. In some jurisdictions, a Privacy Policy will also explain users’ rights to object or withdraw consent on how their information is used.
Given there are many different categories of personal information and each jurisdiction’s laws differ, it is best to reach out to an attorney who can help you determine whether the information you are collecting falls under personal information and what the scope of your policy should look like.
Pro tip: most of the time, privacy policy generators churn out terrible policies. Don’t rely on them! Always have an attorney review your policy for compliance.
Wrapping It All Up….
If you choose to collect information from your online visitors then posting a Privacy Policy on your website is an essential step towards compliance. While posting a Terms of Service on your website is not required by law, it is in your best interest to establish the users’ rights and restrictions on your website. Are you looking for more clarity on where to begin? Reach out to us at bertie@inbetterwetrust.com— we offer free 30-minute consultations!