Website Terms of Use Lawyers Adelaide: Enforceable Terms, User Content, Liability and Privacy
Website terms of use in South Australia
Website terms of use are usually copied from somewhere else and read by nobody, until a competitor scrapes the site, a user posts something defamatory, or a customer relies on a page that was wrong. Talon Legal drafts and reviews terms of use, privacy policies and community rules for Adelaide websites, apps and online platforms. Book a same-day free 30-minute consultation or call (08) 7094 2021.
Website terms of use key facts
| Issue | Position in South Australia |
|---|---|
| What they are | The rules for using a website or app: access, acceptable use, content ownership, user posts, disclaimers, privacy and governing law. Sales terms are separate. |
| Online contracts | A transaction is not invalid because it took place by electronic communications (Electronic Communications Act 2000 (SA) section 7(1)). |
| Acceptance | A person who signs a document known to contain contractual terms is bound whether or not they read it (Toll v Alphapharm at [57]). A click to accept is the closest online equivalent. |
| Unfair terms | Void in a standard form consumer or small business contract (ACL section 23(1)). A right for the site owner alone to vary the terms is a statutory example of a term that may be unfair (section 25(d)). |
| Transparency | Plain language, legibility, clear presentation and ready availability count (section 24(3)). Small print in legal language was not transparent in ACCC v JJ Richards ([60]). |
| Consumer guarantees | Where paid services are supplied to a consumer they cannot be excluded (section 64), and a foreign governing law does not displace them (section 67; Valve v ACCC at [103]). |
| Content protection | Copyright gives the owner the exclusive right to reproduce and communicate its works (Copyright Act section 31). Remedies include injunctions and damages or an account of profits (section 115). |
| User comments | A business that runs a page and invites comments can be the publisher of them (Fairfax Media v Voller at [55]). |
| Defamation defences | Innocent dissemination is a defence for a subordinate distributor without knowledge (Defamation Act 2005 (SA) section 30). |
| Privacy policy | Required for businesses covered by the Privacy Act (APP 1.3), with listed contents (APP 1.4). From 10 December 2026 it must cover significant automated decisions (APP 1.7). |
| First step | Same-day free 30-minute consultation. Call (08) 7094 2021. |
Need a website terms of use lawyer in Adelaide?
Our website terms of use lawyers in Adelaide act for online stores, membership and subscription sites, forums, marketplaces and apps. Terms of use set the rules for using a site: what users may do, who owns the content, what happens to what users post, and how far the site owner answers for the site. The Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), the Copyright Act 1968 (Cth), the Privacy Act 1988 (Cth) and South Australia’s Defamation Act 2005 all shape what they can achieve. This page states the law current to 24 October 2026.
This guide is part of our online business and e-commerce practice. Related guides cover online sales terms and consumer law, website content and copyright, software licences and SaaS terms and data protection and privacy.
Apps, subscriptions, online courses and marketplaces need terms of their own. See our guides to app terms and conditions, subscription and membership terms, online course terms and disclaimers and online marketplace and platform terms.
If your site’s content could be used to train AI models, see our guide to AI-generated content and copyright.
Free Consultation. Send us your current terms and privacy policy for a review. Book a same-day free 30-minute consultation or call (08) 7094 2021.
On this page
- What do website terms of use do?
- Are website terms of use binding?
- Can terms of use limit liability?
- How can terms protect the site's content?
- What should terms say about user comments and uploads?
- Do terms of use need a privacy policy?
- Which law should govern website terms?
- When are terms of use unfair?
- How similar matters tend to play out
- How we act on website terms
- Case law
- Frequently asked questions
What do website terms of use do?
They set the rules for the site, separately from the terms on which anything is sold. A typical set covers who may use the site and how, prohibited conduct such as scraping, hacking and spam, ownership of the site’s content and the limited licence users get, the treatment of anything users post, disclaimers about the information on the site, limits on liability, links to the privacy policy, and the law that governs disputes.
Sites that sell should keep the sales terms separate, because they do a different job and attract different consumer law rules. Our online sales terms guide deals with those. Sites with accounts, subscriptions or paid features usually need both.
A website terms of use lawyer starts with what the site actually does. Terms copied from another site often describe features the business does not have, and miss the risks it does.
Are website terms of use binding?
They can be, if the user agrees to them. A contract made online is as valid as one on paper: a transaction is not invalid because it took place wholly or partly by electronic communications (Electronic Communications Act 2000 (SA) section 7(1)), and a transaction includes a contract (section 5).
The cleanest form of agreement is a positive act. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, the High Court stated the general rule that a person who signs a document known to contain contractual terms is bound by them, whether or not they read it, absent a vitiating element or a claim for equitable or statutory relief ([57]). Ticking a box or clicking “I agree” when creating an account or before checkout is the closest online equivalent.
Terms that sit behind a link at the foot of each page, with no step of acceptance, are harder to enforce against a user who never saw them. For an information site that may not matter much. For a site with accounts, user uploads or paid features, a click to accept at sign-up is worth building in.
Can terms of use limit liability?
Within limits set by statute. Where a site supplies paid services to a consumer, the services must be rendered with due care and skill and be fit for a purpose made known (ACL sections 60 and 61), and a term that purports to exclude those guarantees is void (section 64). For services not ordinarily acquired for personal use, liability can be limited to supplying the services again or paying for that, unless relying on the limit is not fair or reasonable (section 64A).
Outside the guarantees, limitation clauses are read for what they say. Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 came to the High Court from South Australia. An exclusion or limitation clause is construed according to its natural and ordinary meaning, in light of the contract as a whole, and where appropriate against the party relying on it if it is ambiguous ([16]).
Disclaimers do some work, but they do not replace getting the content right. Engaging in conduct in trade or commerce that is misleading or deceptive, or likely to mislead or deceive, is prohibited (section 18). A business publishing prices, product claims or advice on its site is better protected by accurate, current content than by a long disclaimer.
How can terms protect the site’s content?
By stating what users may and may not do with it, on top of copyright. The owner of copyright in a literary or artistic work has the exclusive right to reproduce it, publish it and communicate it to the public (Copyright Act section 31(1)). Copying the site’s text, images or code without a licence infringes (section 36(1)).
Terms of use add contractual rules: a narrow licence to view the site for personal or internal business use, and express prohibitions on scraping, bulk downloading, framing, reverse engineering and using the content to train software. Contractual rules bind users who agreed to them, which is another reason to obtain agreement at sign-up.
Remedies are real. In an action for infringement the court may grant an injunction and either damages or an account of profits (section 115(2)). It may also award additional damages, having regard to matters including the flagrancy of the infringement, the need for deterrence and the infringer’s conduct after being told (section 115(4)).
What should terms say about user comments and uploads?
Who owns what users post, what the site may do with it, what is not allowed, and how complaints are handled. Users usually keep copyright in their posts and grant the site a licence to host, display and adapt them. The terms should also prohibit unlawful, infringing and defamatory material and reserve the right to remove it.
The legal risk is publication. In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27, media companies that ran public Facebook pages and posted stories were held to be the publishers of comments posted by users, because they facilitated, encouraged and thereby assisted the posting of those comments ([55]). Gageler and Gordon JJ reached the same conclusion ([105]). A business that invites comments on its site or social pages is in a similar position.
South Australian law gives defences and remedies. Innocent dissemination is a defence where the defendant published merely as a subordinate distributor, did not know and ought not reasonably to have known the matter was defamatory, and its lack of knowledge was not due to negligence (Defamation Act 2005 (SA) section 30(1)). Since 15 December 2025, once a plaintiff has judgment or an injunction against the defendant, a court can also order a digital intermediary that is not a party to take access prevention steps (section 37A). The Act also sets matters a court must weigh before ordering preliminary discovery to identify anonymous posters (section 21A).
In practice that means a working complaints process. A site that acts promptly when told about defamatory material is far better placed than one that ignores complaints.
Do terms of use need a privacy policy?
A business covered by the Privacy Act must have one, and it usually sits beside the terms of use. The Act covers businesses with annual turnover over $3,000,000 and smaller businesses in listed categories, such as those that trade in personal information (section 6D). A covered business must have a clearly expressed and up-to-date APP privacy policy (APP 1.3) containing the information APP 1.4 lists.
A further requirement starts on 10 December 2026. Where a business uses personal information in a computer program that makes, or does something substantially and directly related to making, decisions that could reasonably be expected to significantly affect individuals’ rights or interests, its privacy policy must say so (APP 1.7 and 1.8, inserted by the Privacy and Other Legislation Amendment Act 2024).
Newsletters and marketing messages bring in the Spam Act 2003 (Cth). A commercial electronic message must not be sent without consent unless an exception applies (section 16), and each must identify the sender and include a working unsubscribe facility (sections 17 and 18).
Which law should govern website terms?
Usually South Australian law, for a South Australian business. A governing law and jurisdiction clause tells users where disputes will be decided and saves arguing about it later.
A foreign law clause will not remove consumer protections. The consumer guarantees apply despite a term that substitutes the law of another country (ACL section 67). In Valve Corporation v ACCC [2017] FCAFC 224, the Full Court rejected the argument that the guarantees did not apply because the contract’s proper law was foreign ([103]).
When are terms of use unfair?
When they form a standard form consumer or small business contract and a term meets the statutory test. A term is unfair if it would cause a significant imbalance, is not reasonably necessary to protect the legitimate interests of the party it advantages, and would cause detriment if relied on (ACL section 24(1)). The business relying on it must prove it is reasonably necessary (section 24(4)).
The clause most website terms contain, allowing the business to change the terms at any time by posting new ones, matches the statutory example of a term permitting one party alone to vary the terms (section 25(d)). In ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224, a unilateral price variation clause with no matching right to terminate created a significant imbalance ([56]), and terms in legal language and very small print, not drawn to the customer’s attention, were not transparent ([60]).
A variation clause that gives notice and a right to leave before changes take effect is much easier to defend. Since 9 November 2023, making a standard form contract containing an unfair term the business proposed, or relying on one, has been a contravention (section 23(2A) and (2C)).
How similar matters tend to play out
Three illustrations of how the law on this page combines on ordinary facts. They are not predictions. Outcome depends on the terms, the evidence and the court.
Lower range. A competitor copies an Adelaide tour operator’s itinerary pages word for word. The text is a literary work and copying it infringes (sections 31 and 36). A letter of demand citing the copyright, and the injunction and damages a court can grant (section 115), usually ends it. The terms of use add a contractual claim only if the competitor agreed to them.
Middle range. A local community forum receives a complaint that a member’s post accuses a named tradesperson of fraud. On Voller, the forum operator may be the publisher of the post ([55]). Taking it down promptly, and keeping a record of the complaint and the action taken, supports the innocent dissemination defence (section 30).
Upper range. A membership site’s terms let it change prices and features at any time by updating the terms page. Most members are consumers. The variation clause is a statutory example of a term that may be unfair (section 25(d)). Adding notice of changes and a right to cancel with a pro rata refund makes it far easier to defend.
How we act on website terms
We act for site owners, platforms and app businesses. The aim is terms that match what the site does, bind the users who matter, protect the content, manage user posts lawfully and survive the unfair contract terms test.
| Stage | What happens | What we do |
|---|---|---|
| Review | Existing terms and privacy policy are sent. | Compare them with what the site does and flag unenforceable or risky terms. |
| Drafting | New terms and policies are prepared. | Draft acceptance flow, acceptable use, content licence, user post rules and privacy policy. |
| Launch | Terms go live with the site or app. | Check how acceptance is captured and where the terms are displayed. |
| Complaint | A copying, comment or privacy complaint arrives. | Advise on removal, the defamation defences and the response. |
| Enforcement | Content is copied or terms are breached. | Send demands and advise on copyright and contract remedies. |
We cannot promise an outcome, and no lawyer can. We can make sure the terms work for the site the business actually runs.
Every hour matters. Book a same-day free 30-minute consultation, or call (08) 7094 2021 now.
Website terms case law
Voller concerned comments on a business’s online pages and Valve an online supplier’s terms. The other decisions deal with the acceptance, unfairness and construction points every set of terms raises.
| Case | Court | Principle | Pinpoint |
|---|---|---|---|
| Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 | High Court | A signed contract binds whether or not it was read | [57] |
| Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 | High Court | Page owners who invite comments publish them | [55], [105] |
| ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224 | Federal Court | Unilateral variation unfair; small print not transparent | [56], [60] |
| Valve Corporation v ACCC [2017] FCAFC 224 | Full Federal Court | Guarantees apply despite a foreign proper law; no contracting out | [103], [107] |
| Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82 | High Court | How exclusion and limitation clauses are construed | [16] |
Case notes
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
The High Court held that a person who signs a document known to contain contractual terms is bound by them, whether or not the person read it, absent a vitiating element or a claim for equitable or statutory relief ([57]).
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
The plurality held that media companies, by facilitating, encouraging and thereby assisting the posting of comments on their public Facebook pages, were publishers of those comments ([55]). Gageler and Gordon JJ reached the same conclusion ([105]). The appeals were dismissed (orders).
ACCC v JJ Richards & Sons Pty Ltd [2017] FCA 1224
A unilateral price variation clause with no matching right to terminate, and an automatic renewal clause, created a significant imbalance in small business standard form contracts ([56]). The terms were in legal language and very small print and were not transparent ([60]).
Valve Corporation v ACCC [2017] FCAFC 224
The Full Court rejected the argument that the consumer guarantees did not apply because the contract’s proper law was foreign ([103]), and said the evident purpose of section 64 is that parties cannot contract out of the guarantees ([107]).
Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82
On appeal from South Australia, the High Court held that exclusion and limitation clauses are construed according to their natural and ordinary meaning, in light of the contract as a whole, and where appropriate against the party relying on them in case of ambiguity ([16]).
Frequently asked questions
Does every website need terms of use?
Not by law, but most commercial sites benefit from them. Sites with accounts, user posts, paid features or valuable content need them most.
Are website terms of use legally binding?
If the user agreed to them. An online contract is valid (Electronic Communications Act 2000 (SA) section 7(1)), and a click to accept at sign-up or checkout is the closest equivalent of signing, which binds whether or not the terms were read (Toll v Alphapharm at [57]).
Can a business change its terms of use at any time?
Only if the terms allow it, and in a standard form consumer or small business contract a one-sided variation right may be unfair (ACL section 25(d)). Notice and a right to leave make it easier to defend.
Can website terms exclude all liability?
Not for the consumer guarantees where paid services are supplied to a consumer (ACL section 64). Other limits are read for what they say (Darlington at [16]).
Can terms of use stop competitors scraping a website?
They add a contractual prohibition for users who agreed to the terms. Copying the site’s text, images or code without a licence also infringes copyright (Copyright Act sections 31 and 36).
Is a website owner liable for comments posted by users?
It can be the publisher of them. In Fairfax Media v Voller, page owners who invited comments were held to be publishers ([55]). Prompt removal after a complaint supports the innocent dissemination defence (Defamation Act 2005 (SA) section 30).
Who owns content users upload to a website?
Usually the user, who grants the site a licence under the terms. The terms should say what the site may do with uploads and what is prohibited.
Does a website need a privacy policy?
If the business is covered by the Privacy Act, yes (APP 1.3). Businesses with turnover over $3,000,000 are covered, and so are smaller businesses in listed categories (section 6D).
What changes to privacy policies start in December 2026?
From 10 December 2026, a covered business that uses computer programs to make decisions that could significantly affect individuals must describe that in its privacy policy (APP 1.7 and 1.8).
Does a foreign governing law clause protect an Australian website?
Not against the consumer guarantees, which apply despite a term substituting foreign law (ACL section 67; Valve v ACCC at [103]).
Do I need a website terms of use lawyer?
For a site with accounts, user content or paid features, yes. A website terms of use lawyer can build terms that bind users and manage the real risks of the site. A free 30-minute consultation will tell you where you stand.