Author’s Note
Did you know that the Terms of Service at the bottom of a website is a form of agreement? This agreement can be enforced by the courts in India. They are called Browsewrap Agreements.
Don’t bind yourself without reading the T&C and PP of a website or an app.
Terms and Conditions, Terms of Use, Terms of Service and Privacy Policy are different terms which you must have seen at the footer of every website of the app.
Are you an entrepreneur who is thinking of creating a website or an app? Upload these legal documents and secure yourself legally. Get them drafted by a professional who does this on a regular basis. Make sure that he exercises due diligence and pays special attention to force majeure.
The author has discussed the Indian laws which are at play here.
Table of Contents
- What are Terms of Service and Terms of Use?
- What is Privacy Policy?
- Privacy Policy legally required
- Terms of Service and Terms of Use protects business
- Legality of Browsewrap and Clickwrap Agreements
- Conclusion
What are Terms of Service and Terms of Use?
Terms and Conditions or T&C is an umbrella term which includes Terms of Service and Terms of Use. These terms are often mistakenly used for each other.
Terms of Service is used when the app or website is engaged in providing a service or product or both.
Terms of Use is used when the app or website is not involved in any monetary transaction or any other kind of transaction.
The correct usage of the title of the Agreement is important because it lets the user or visitor have clarity. Also, the courts may refer to the title as misleading and rule against the owner of the app or website.
What is Privacy Policy?
A Privacy Policy or PP informs the information providers about how the operators of the website or an App are going to collect, utilize, store, and protect the personal data provided by the information provider. It ensures that the information providers (users) are aware of and agree to the utilization of the information provided.
IT Security Practices Rules[1] mandates the body corporate to include and publish a Privacy Policy containing:
(i) Clear and easily accessible statements of its practices and policies;
(ii) type of personal or sensitive personal data or information collected; (Rule 3, IT Rules, 2011)[2]
(iii) purpose of collection and usage of such information;
(iv) disclosure of information including sensitive personal data or information; (Rule 6, IT Rules, 2011)[3]
(v) reasonable security practices and procedures. (Rule 8, IT Rules, 2011)[4]
For the above purposes a “body corporate” means any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities.[5]
Supreme court in the case of K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Or[6] held that Right to Privacy is a Fundamental Right under Article 21 of the Constitution of India.
To protect our Sensitive personal data or information, the information technology Act comes into rescue to safeguard rights against any cyber incidents, privacy violations.
Privacy Policy legally required
Even when your website simply tracks the user’s location, you need to mention this in your Privacy Policy.
When your website or an App collects the user’s sensitive and personal data[7] , that can identify an individual such as their first and last names, date of birth, email address, their permanent or present address, financial information, telephone numbers, medical records, etc., your Privacy Policy should mention why you need that information and how are you going to store it.
It should be noted that the user is providing this information voluntarily.
Even when you are not collecting any personal information from the user, you still need to mention it in your Privacy Policy.[8]
“ We do not collect or store any personal data”
Rule 4 of the IT rules, 2011[9] states that it is the responsibility of the website that its users are aware of the Privacy Policies when they visit the site.
Terms of Service and Terms of Use protects business
It is not mandatory as per the law to have Terms of Service for your website or app. But any smart businessman or entrepreneur would protect himself and his organisation from legal disputes.
If you don’t have Terms of Service, then you may get in trouble for a number of reasons.
For example: You might have to litigate in the jurisdiction of your website’s user if you don’t have a clause in the Terms of Service regarding dispute resolution and the jurisdiction. You can even go for arbitration and decide the place of arbitration in advance. All of this is only available if you have a Terms of Service in the first place.
The Terms of Service can act a legally binding contract when drafted duly. Every legit business transaction is governed by the principles of law of contracts. Therefore, every website or app which transacts with users or visitors should be governed by a legal contract.
The Terms of Use on the other hand is a legal document which acts a disclaimer and protects the owner of the website or app from unnecessary liabilities.
Terms of Use can also act as a legally binding contract when activities of the app or website fulfills the essentials of a valid contract.
Legality of Browsewrap and Clickwrap Agreements
Terms of Use and Terms of Service lays down certain terms which the user of the app or website agrees to without reading it. Now that sounds bad, but it really isn’t.
Such terms to which users agree without reading are called Browsewrap agreements. This, basically, means that the user agrees to all the terms by merely browsing the website.
They are internationally acknowledged. In India, people get confused because they haven’t heard of the terms or read about it in any statute.
The fact is that the Indian courts recognize electronic documents and electronic contract as per the Sections 4 and 10A of the Information Technology Act, 2000. And any document which is an agreement and is enforceable by the law is a contract.
You must wonder, “how can I be a party to a contract without reading it?”
To answer that you need to think of a solution where a website or app can force you to read an agreement. Is it possible?
You can think of Clickwrap agreements as a solution. Which is viable and is reasonable. But, it still does not solve the problem because users can anyway click the “I agree…” button without reading the Terms.
So, Clickwrap seems like a solution, but it will kill business opportunities if every website and app is legally bound to show a Clickwrap agreement.
Clickwrap agreements are those where the website or app asks you to select a checkbox or button which says something like “I agree to the ….”
Conclusion
- Terms and Conditions is an umbrella term which includes both “Terms of Service” and “Terms of Use”.
- Terms and Conditions are agreements, browsewrap agreements to be exact.
- Privacy Policy is a legal liability for every website or app that collects user’s information.
Edited by Pratiksha Dwivedi
- Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. ↑
- Rule 3, Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. ↑
- Rule 6, Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. ↑
- Rule 8, Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. ↑
- Section 43 A, explanation (i) Information Technology Act, 2000. ↑
- KS Puttaswamy (Retd.) & Anr. v. Union of India & Or 2017 SCC 1. ↑
- Rule 3, Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. ↑
- Termsfeed, Privacy Policy if No Personal Data is Collected, Termsfeed. ( 08 May 2020, 8:50 PM ) https://www.termsfeed.com/blog/privacy-policy-no-personal-data-collected/. ↑
- Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011. ↑
