With the COVID-19 pandemic, serial litigants who sue for the sake of fast settlement regardless of the merits (sometimes known as trolls) are locked out of their offices as well. But without leaving the comfort of their homes, they can still e-file claims against website owners for failing to have or abide by a privacy policy, or against websites that breach their own terms and conditions.
Merely hoping that your website will never be sued is wishful thinking. Jurisdictions like California, New York, the European Union, and the UK have all enacted privacy regulations that require websites to disclose their Privacy Policies — and in each of these jurisdictions, consumers can start a private cause of action against the website if the privacy policy is not properly displayed (and if they’re not complied with). For example, the California Consumer Protection Act of 2018 (the “CCPA,” which became effective January 1, 2020) requires businesses to disclose what personal information is collected and the types of third parties with whom the business shares information, and to give a consumer the right to opt-out of providing personal information.
Unfortunately, people can exploit these well-intentioned regulations. A new cottage industry of serial litigation is likely to emerge and join the league of questionable lawsuits: Suing for statutory damages over Privacy Policy violations.Violations of the CCPA can cost $100 to $750 per infringement — which isn’t a lot for an individual claim, but could be substantial if the plaintiff brings a class action on behalf of everyone who’s provided information on the website.
When a company is creating a Privacy Policy or Terms and Conditions (T&C), you have to take care to address all aspects of the business. For example, a website that sells toys or anything to individuals younger than 18 should include a section in the T&C addressing the Children’s Online Privacy Protection Rule (COPPA).
Besides satisfying statutes, a customized T&C can act as a proactive measure to protect website owners by:
- Defining relationships and rights
- Choosing the geographic location of any dispute resolution
- Disclosing the use of third-party vendors
- Protecting intellectual property
- Providing for the termination of problem users
- Establishing limitations on liability
Each of our clients completes a questionnaire to get the details necessary to draft a customized Privacy Policy and a customized T&C. One size does not fit all — you already know that your business is different from everyone else’s. You or your website developer can then post the policy and agreement on a page linked to your website’s home page, for all the world to see.
It’s always good to play by the rules, but it’s even better to set the rules when you can.
