Background About Website Privacy Policy In Australia

Simply, a website's privacy policy sets out what data the website provider will collect from users, and what they are going to do with the information. It is an important element of complying with the Privacy Act 1988 (Cth) 'privacy principles' (section 14) which relates to those companies based in Australia. It is important to advise users if you are acquiring credit card details when they pay for services or goods on your site, or if you demand users to sign up and they provide personal data for instance on social networking sites. Even if your website is simply providing information, a privacy policy is critical as data about the accessing computer is collected by all servers.

Privacy policies are definitely not one size fits all; look at the privacy policy of Facebook compared with the privacy policy of say ebay, simply copying and pasting from one to the other could be absurd and it is precisely the same for any other website. Enforceability: The most essential section of website terms and conditions and privacy policies is that they should be enforceable. Consider the terms as an online contract which once acknowledged by a user is binding on both them and you. As was the situation for DealsDirect terms which go against the law, in that case the Trade Practices Act, will not be valid or enforceable. This leads to bias for individuals and importantly for vendors who will base their business within the terms and conditions customers have approved.

It must be observed that the fact of Trumpet Software Pty Ltd v OzEmail Pty Ltd (1996) 34 IPR 481 calls into question the actual nature of the relationship between website users and website providers. In Trumpet the court held that any online agreement which doesn't see consideration (something valuable) pass relating to the two parties won't be a contract, simply directing to a webpage does not create a contractual or license arrangement. This means that online sellers should not have enforceability problems with their terms and conditions as a submission of payment is an acceptance of your terms for consideration by a customer.

Nevertheless it appears as if in 'click-wrap' agreements, in which a user must click to take the terms and conditions of a site, could be contractual in Australia provided that we follow American decisions on the matter: Specht and Ors. V Netscape Communications and America Online (United States District Court, New York, 3 July 2001). This means for some websites which do not demand consideration or express agreement (clicking) by users the question of enforceability stays open. Therefore, it's better to be safe than sorry and have your terms and conditions drafted by lawyers in order to avoid problems in the future.

Finally, it is important to state which country's laws apply to your website's terms and conditions as this is where any legal enforcement of a user or provider's rights will occur. It is clear that website terms and conditions are not as basic as their humble place, hidden in the footnotes of websites would suggest. They are extremely important for any website or online business, particularly sellers. Therefore, it is crucial that you get them right, do not copy and paste. Professional drafting may seem like a large outlay of capital, however given your business model doesn't dramatically change the terms and conditions made by a lawyer will last you the life of your website. Remember one size does not fit all.