Privacy Policy vs. Terms of Service
Privacy Policies and Terms of Service agreements are both vital components of any website or mobile app.
However, they each serve very different purposes and provide very different types of important information to visitors to your website or mobile app.
Privacy Policy
Your Privacy Policy is where you tell visitors to your website or mobile app about how you collect, store, share, and use their personal information, and what personal information you are collecting, storing, sharing and using.
You must also disclose the data collection practices of any third parties that you allow to collect data through your website or mobile app.
Since 2003, the California Online Privacy Protection App (“CalOPPA”) has required that all websites and mobile apps post Privacy Policies.
This requirement has been widely accepted in the internet world well beyond the borders of California, and currently it’s standard practice to have a Privacy Policy.
CalOPPA requires that a Privacy Policy include what information is being collected by both the operator of the website or mobile app, as well as what information may be shared with third parties, and other basic requirements.
Privacy Policies must be thorough, easy to understand by your average person, and accurate. Leaving out information or being vague or inaccurate is a serious issue that can end up causing the Federal Trade Commission (“FTC”) to get involved and take legal action.
Take, for example, the case of Compete.com.
Their Privacy Policy was found to be in violation of FTC requirements because it contained inaccurate data and did not correctly reflect and describe what was actually happening with personal data collected through the site. Compete.com claimed that they were only collecting minimal data, yet they were actually collecting data beyond what was disclosed.
Terms of Service
Your Terms of Service should spell out everything else that visitors need to know about what is required of them when using your website or mobile app, as well as any disclaimers you want to add.
When a user agrees to your Terms of Service, the agreement works as a binding agreement between the website or mobile app operator and the user.
Here is where you put limitations you wish to keep in place on your website or mobile app, such as limiting screen scraping or making a website or mobile app be only for private and non-commercial use.
You can include arbitration clauses, disclaimers to your own liability, and further limitations on users.
Privacy Policies and Terms of Service tend to go together when it comes to keeping your website or mobile app legally compliant, legally protected, and your users informed.
However, these two important components of websites and mobile apps are actually very different in content and purpose, and thus should be kept separated to ensure that your customers or users are aware that there are two separate texts they should read.
How to Keep them Separate
Keeping your Privacy Policy separate from your Terms of Service is easy to do once you understand their differences.
CalOPPA requires that notice of a Privacy Policy be conspicuously posted on a website or mobile app, and that the word “Privacy” be included in the link.
Below is an example from MyFitnessPal.com of a portion of a terms of service that references a Privacy Policy located elsewhere and links the user to that agreement. This is a great way to let your visitors know that you do in fact have a Privacy Policy, but still keep it separate from the Terms of Service:
MixPanel.com also separates their terms of service from their Privacy Policy.
Each section is linked separately on the footer of the website. This makes it clear that there are two separate areas and two separate policies:
You could include all of your Privacy Policy information in your Terms of Service, but even if you do this, it’s a good idea to still have that same information repeated in a clearly separate agreement and provide a link to this separate section both clearly visible on your website, and within your Terms of Service.
This kind of separation between a Terms of Service and a Privacy Policy is good because it gives your users a chance to realize that each document is serving a different purpose and should be considered as its own significant entity.
Note how Zoho.com adds an additional link for their Anti-spam Policy, separate from both the Terms of Service and Privacy Policy.
While a Privacy Policy and Terms of Service work together to create a compliant and secure website or mobile app, they both make up different pieces of the puzzle and should be kept separate.
This is a simple step you can take to help your users or customers better understand how their privacy is being affected by using your website or mobile app, as well as what is expected and required of them while interacting with your website or mobile app.
