When you change your company’s policies, do you keep a copy of your terms and conditions and your privacy policies? You might assume that you can toss those and not think about them again, but the reality couldn’t be further from the truth.
Keeping records of these updates may help you avoid legal liability in the future.
1. Avoid Contradictions in Your Promises
Have you made promises to your customers that you wouldn’t do something, such as sell their information to an advertising partner? These promises are incredibly important for your brand, and if you don’t keep track of them, you will give the impression that your online business isn’t trustworthy.
Your reputation may take a hit, and you could find yourself with a public relations backlash, as unhappy customers would point out that you contradicted the very reasons that they wanted to buy your products or services in the first place.
If you do need to change one of these promises due to regulations or other legal requirements, be up-front with your audience and notify your users of policy updates. Explain why you have to alter the policies and be specific about the exact terms that you intend to change.
This authenticity and straightforward approach can go a long way towards gaining your customers’ understanding. In some cases, your willingness to be transparent is a move that has the potential to build their trust even further.
Increased trust in your website will mean increased conversions and revenue.
You also avoid giving the impression that you employ deceptive business practices. The FTC doesn’t look kindly on companies that try to mislead consumers. You don’t need to run the risk of drawing this type of negative attention – especially when you know that you’re not intentionally being deceptive.
2. Know Which Policies Your Customers Agreed To
Your customers aren’t automatically covered under your new terms of service or privacy policies just because you put them in place. They must first accept and give their consent to the new policies through their actions.
This informed consent and acceptance can be given by way of either browsewrap, clickwrap, or a consent banner.
Browsewrap is a term used to describe the legal interpretation of a user agreeing to your policies by simply using the site. For a browsewrap agreement to be enforceable, you need only include a line in your policies that states this specifically. Their continued use of your site and services constitutes an acceptance of your policies.
Clickwrap, on the other hand, is a method which requires users to take some sort of action in order to accept the terms and legal policies before they can use the website or its services. This usually comes in the form of a popup window that requires the user to click “OK” or “I agree”.
There is a browsewrap versus clickwrap debate that’s been ongoing for years. Because users aren’t forced to look at the policies they’re agreeing to in a browsewrap method, some judges feel that this method doesn’t capture user consent properly.
Users of a browsewrap website may not be aware of the terms and conditions they agreed to, which makes it difficult to claim that the business has obtained informed consent.
A clickwrap agreement may be better at getting explicit consent from the users before they start using your website, but that doesn’t mean there aren’t legal difficulties with this method, as well.
In particular, your clickwrap agreement needs to meet the requirements for a unilateral form contract. You may also end up in a situation where certain terms are not legally enforceable.
For this reason, keeping and maintaining records of your previous policies and policy updates is essential.
The last option is to employ a consent banner. These banners are similar to a clickwrap agreement, in that they ask a user to take action to agree to the terms of the policies linked within, or to agree to changes made to those policies. However, these banners allows users to continue accessing a site, unlike a clickwrap modal.
3. Maintain Consistent Language Throughout the Policies
Sometimes the smallest changes in terminology can be a big problem in a legal document. Compare your latest policies to your older ones to determine whether you’re using the same verbiage, so you’re not making a move towards higher legal liability.
If you’re not paying attention, you could end up with a coverage gap in an area that’s integral to your business model. All it takes are changes to a paragraph here and a phrase there to completely shift the meaning of your policy.
This situation acts as a good example of why it makes sense to check with a lawyer every time you update your policies.
The other problem with changing terminology is that you may be unable to leverage previous legal victories going forward. You may have won a case because of the strength of your previous contract, but end up mounting a poor defense because you’ve drastically changed your terms of service.
4. Keep Track of Your Legal Liability
Do you have a thorough understanding of what your organization is legally responsible for? You may have access to your previous terms of service and privacy policies, but that doesn’t mean you have a thorough comprehension of the contract.
You need strong visibility into the entire policy history so you have the legal resources on hand to defend your organization for the potential suits that may get filed against you.
Otherwise, you won’t know what you need in order to maximize your chances of success in court. You may need to use inefficient sources for legal resources that are more expensive or more difficult to acquire.
This configuration creates more paperwork and documentation that you have to deal with, but you’ll be happy with it the first time you end up in court with a former customer referencing one of your older policies.
Put a system in place to organize the versions and track updates throughout the policy’s life. As you add or remove products, change your business model, or collect more information from your customers, you will have to adapt your policies to meet your ever-changing needs.
This flexibility shouldn’t come at a legal cost, and all you need to do is make sure to keep copies of all policy versions.