Lawyers drafting online terms of use/service and privacy policies are well-advised to establish a record that allows the client to demonstrate the existence of such terms and the date they were in effect. Such a record will prove quite handy in future litigation. See, eg, Kinney v. YouTube, LLC (Cal. Ct. App. 2018) (YouTube forced to rely on sworn testimony of engineer responsible for posting YouTube terms of service to prove that plaintiff click-accepted a version of the YouTube terms that included a synthetic one-year statute of limitations).
The Wayback Machine is one way to establish just such a record. Launched in 2001 by the Internet Archive, a nonprofit based in San Francisco, California, the Wayback Machine is a digital archive of the entire Internet. At this site, one can upload or capture a webpage on a specific date and time, and then retrieve it to prove its existence on that date and time. Go here to see a copy of the affidavit that the Internet Archive manager uses for establishing an evidentiary foundation for archived webpages. Courts have upheld the admissibility of such evidence. See United States v. Gasperini (2nd Cir. 2018).
The Wayback Machine should be used, not just for preserving a record of clients’ terms, but for preserving a record of online terms that clients entered into, or of online documents that traditionally signed agreements reference in URLs embedded in the document. In fact, the best practice in this situation would be to create the Wayback Machine entry and email that to the contract counterparty after the deal concludes.
(From the Redline Tip o’ the Day Collection.)
