The Growth and Instability of Internet Law Requires Entities to Focus and Refocus on Terms of Use

No other area of law is as undeveloped as internet law. While many traditional legal principles are applied to the online world, the unique technical and factual challenges presented by the internet can leave those who are unprepared vulnerable. Fortunately, internet lawyers do exist and are able to help identify legal risks, mitigate those risks, and provide recommendations in light of the newly developing laws.

In fact, one should look no further than a website's Terms of Use, sometimes known as Terms of Service, for insight into the state of internet law. It is within these terms, which if drafted properly and implemented effectively, that an internet service provider (ISP) and end-user will be bound in multiple instances. ISPs will seek immunity through the use of the Digital Millennium Copyright Act's (DMCA) safe harbor provision or Section 230 of the Communications Decency Act. On the other hand, users will look to these terms to understand what rights have been granted to them and those that are reserved by the ISP. Equally important, third parties will even be governed by these terms as they attempt to redress copyright infringement, trademark infringement, online defamation, or other legal issues through the ISP.

Terms of Use are no longer an option. While they are not required, for example like a housing contract under the Statute of Frauds, they are critically important to any ISP. However, these terms should not be static. They should be reviewed and changed, preferably by an internet lawyer, in light of the changes within the field of internet law. Moreover, ISP's must be aware of the laws so that their actions can also change, as needed. For example, the recent changes to Part 255 of the FTC Guides as it pertains to testimonials could expose entities to liability for failure to comply. Simple disclaimers may no longer suffice. Instead, well-drafted and well-reasoned Terms of Use can help reduce the likelihood of legal and financial liability.

ISPs should:

1. have Terms of Use;
2. abide by the Terms of Use; and
3. revisit Terms of Use on a regular basis to confirm inclusion of recent laws.

Users and others should:

1. read the Terms of Use;
2. re-read the Terms of Use when notified of changes; and
3. understand the Terms of Use are likely a binding agreement.
With the proper attention, and occasional refocus, ISPs, users, and others alike can understand, comply with, and not fear internet laws.

Brian A. Hall is an internet lawyer and partner at Traverse Legal, PLC, a law firm specializing in internet law and intellectual property matters as well as complex litigation. His law firm serves as internet lawyers for web companies, bloggers, and other entities requiring representation in areas related to internet law.

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