Why Copying T&Cs From Another Website Is A Bad Idea

Terms and conditions are a given part of our lives as internet users. In fact, to your casual internet user most of the terms and conditions seen would be considered highly similar. When you become a small business owner, who operates online, it might seem the easy option is to copy the terms and conditions from another website. 

However, it’s important to give your  terms and conditions a bit more love and attention. 

This is for two main reasons. 

1. First there is a chance that you will breach copyright law. 
2. Second, terms and conditions are designed to protect individual businesses. If you copy the terms and conditions it will not protect your business as well as customised terms and conditions. 

This article will explain why terms and conditions are a must and then explore these two reasons. 

Terms And Conditions Are A MUST!

Terms and conditions are a contract between yourself (the website/business operator) and the website user. It establishes the rights and responsibilities of each party (you and the user) when using the website. Therefore, it is an important instrument to both moderate your users expectations of the website experience and to protect yourself. 

If you are running a business things can go wrong and often it could be beyond your control. If you are able to notify the user of what is and is not your responsibility through the terms and conditions, your business will benefit from that extra layer of protection. 

For example, a lot of businesses have links on their website to another business, service or website generally, known as third-party links. You could have posted this link on your website and therefore, could be considered  accountable for what the third party themselves. However, by putting a disclaimer in your terms and conditions saying you are not responsible for any third parties, you let the user know you are not responsible. 

Copyright Infringement

If you are considering copying someone else’s terms and conditions you need to know that you will likely infringe copyright laws. In Australia, copyright automatically applies to originally created content. 

Therefore, they will likely apply to terms and conditions. Infringing copyright has serious consequences and can happen without you intending or knowing your breaching it. There are exceptions to copyright laws but they will not apply to copying terms and conditions for your website. 

Infringing copyright carries significant penalties including payment for damages, fines of up to $117,000 and potential jail time of up to five years. To avoid these penalities, do not copy the terms and conditions off another website.

Every Business Is Different

Terms and conditions protect businesses. This is their purpose and therefore they are designed specifically to individual businesses. 

Terms and conditions can cover your privacy, shipping, payment, refund and return policies. 

These policies are all things that are specific to the product or service that you are selling, the location you’re operating in and the experience you want your user to have. Even if a business seems very similar to yours it is likely different in one of these ways. 

Therefore, you will be exposed to risks that other businesses are not and do not protect themselves from. To ensure that you are fully protected you should design your policies and terms and conditions to be specific to your business. 

Product or Service

Your product or service is unique to your business. Terms and conditions often highlight this to the users of your website and emphasises that it is your intellectual property. 

If you copy someone else’s terms and conditions you have not tailored them to your product you may not be eligible to have your intellectual property protected. While there are other avenues to protect your intellectual property it is good practice to be explicit when running a business. Ensure to tailor your terms and conditions to protect yourself. 

Location 

Terms and conditions can state which jurisdiction they operate under. This means which laws apply to their business – for example: this business is subject to NSW and Australian federal law. 

In a globalised world, especially on the internet this is important because consumer, commercial and other laws can change significantly depending on which jurisdiction you are in. 

If you copy someone’s terms and conditions they may:

• be operating in a different location to yours and
• be compliant to another state, territory or country’s laws. 

Therefore, you should design your terms and conditions with knowledge and understanding of which laws will apply to your business. 

User Experience 

Each website offers something different to their users. This can affect what obligations you want your users to have when they are using your site. A good example is if your website is intended for all ages or just for adults (18+). 

To protect yourself from the wrong user or expectations of gaining access to your website you should stipulate in your terms and conditions who should be using your website, how they should be using and any other restrictions. This understandably differs for each website and is another reason that someone else’s terms and conditions would not work for you. 

Shipping Policy

If you are selling a product online you are likely to have a procedure for getting your products to your buyers. This procedure is going to be dependent on your product and resources. You are also going to have to think about what happens if the shipping goes wrong and who is responsible for compensating the customer. These specifics will all be set out in your terms and conditions. 

If you copy someone else’s terms and conditions you may be taking on responsibilities that you cannot honour. 

Returns Policy

Australian Consumer Law outlines certain circumstances you must offer your customer a refund or replacement. These should be outlined clearly in your terms and conditions so your consumers know about their rights when something goes wrong with their product. Some businesses go above and beyond in terms of a returns policy. For example, some businesses offer returns and refunds for any reason within thirty days of receiving the product. As a business you need to decide what kind of returns policy is best for you. Someone else’s terms and conditions will detail what is best for them. 

Privacy Policy

Privacy law in Australia is very strict on businesses handling people’s personal data. Usually a business will have a document available that is separate to their terms and conditions. 

Sometimes however it is all dealt with in the terms and conditions. A privacy policy tells your customers what data you take from them and how you protect this data. It has to be compliant with the Australian Privacy law. Each business has different procedures for handling peoples data and protecting privacy that suit them. Someone else’s terms and conditions will not offer adequate protection if you experience a mishandling of data or fail to protect someone’s data. 

Need A Hand? 

Designing terms and conditions isn’t always straightforward. There are many different elements to factor in when designing them. This makes it tempting to copy or base your terms and conditions off another website, however you should avoid doing this at all cost. If you are finding the task daunting or just want some pointers the lawyers at Sprintlaw have the experience and expertise to help you out.  

You can reach us for a free, no obligations chat on 1800 730 617 or drop a line at team@sprintlaw.com.au.

Joe Casey

Joe is a final year law student at the Australian National University. Joe has legal experience in private, government and community legal spaces and is now a Content Writer at Sprintlaw.