When the Disclaimers in Your Website’s Terms of Services Are Not Enough

June 27, 2019
Brandon S. Harter

Just because your terms of service say you’re not liable, doesn’t mean you aren’t. Like the fine print at the bottom of a contract, website terms of use are a place for businesses to protect themselves. But they are not a substitute for thinking carefully about how you interact with your customers – particularly if you collect any information from those visiting your website (which chances are, you do).

Take YouTube, for instance. Buried deep within YouTube’s Terms of Service is the following paragraph (quoted as of the date of this post):

You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service. There are lots of other great web sites for you. Talk to your parents about what sites are appropriate for you.

Why is there language about being over 13? Because collecting information from children without parental consent violates the Children’s Online Privacy Protection Act, also known as COPPA. (For a deeper dive into COPPA and how it applies to you, see Part I and Part II of the Lancaster Law Blog’s series on COPPA).

Now you might be thinking, “I don’t collect any user information”. But if you’re measuring your marketing, you are probably wrong. Collecting information includes things as simple as tracking where a user is from (i.e. geolocation data) or a user name that can be tracked across multiple websites (like a Google account). Either of these features may come built into the tools you use to monitor your website traffic.

So… is YouTube safe from COPPA by including this boilerplate disclaimer? The Federal Trade Commission doesn’t think so. YouTube is currently under investigation because some of its content is obviously geared towards children. And like many statutes designed to protect the public, COPPA’s standard looks beyond the disclaimer to other factors like the subject matter, the use of cartoons or child-like activities, and advertising directed to children. Just as you cannot evade your legal duties an employer merely by calling someone an independent contractor, you cannot evade COPPA’s duties with a disclaimer.

Does that mean you shouldn’t bother with a COPPA disclaimer? Not at all. An appropriate disclaimer is an important piece of evidence in establishing your intent. But you need to back that up by making sure your content and advertising are not geared toward children. And if your content is geared towards children, embrace it! Just make sure your website collects information only from users whose parents have provided consent.

This is yet another example of when copying language you found online can fall short. Take the time to consult with your legal counsel so your terms match what you do and how you do it.

Brandon Harter is litigator and technology guru at Russell, Krafft & Gruber, LLP, in Lancaster, Pennsylvania. He received his law degree from William & Mary Law School and advises clients on issues of Civil Litigation & Dispute ResolutionMunicipal Law, and chairs the firm’s Tech Law Group.