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Keep Terms of Service and Privacy Notices Separate
There is such a thing as "over lawyering." Perhaps that is a funny thing for three lawyers to say. But, in the case of online terms of service and privacy notices, it is certainly true.
In the quest to limit liability in their online platforms, many companies struggle with the interaction between online terms of service and privacy notices. The range of common advice spans the spectrum from: laws "require" incorporation of privacy notices into terms of service (not true), to companies should never mention privacy notices in terms of service (we don't recommend this path either). This article examines why terms of service and privacy notices should work in conjunction with one another, but also why it is not advisable to incorporate privacy notices into online terms of service.
Public privacy notices and website terms of service, together, establish the rights, restrictions, and potential liabilities of online platform providers and their users. It is easy to think of these two common documents as a combined contract. However, doing so can lead to greater potential liability for a company. Each document serves a distinct purpose and represents a different form of engagement with users.
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