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Let us say that someone is hosting a web application where others can come and register and use for free(like stackoverflow or stackexchange). Is a terms of service agreement necessary? Like this TOS for stackexchange ? If there is no TOS agreement, are there any implied(default) legal conditions?

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We are mostly not lawyers, and if there are any they aren't your lawyer, and so you're not getting any legal advice you can depend on here. Moreover, the answers will vary depending on where you live, where your site is hosted, and where your users are, none of which you've told us. Get a lawyer who knows the appropriate laws. –  David Thornley Apr 20 '11 at 14:23
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5 Answers

If there is no TOS agreement, are there any implied(default) legal conditions?

Ask a lawyer. Seriously, nobody here is qualified to give you legal advice. (And if anybody was qualified, they'd also know that they shouldn't!)

The real point of the ToS is to make it clear what the ground rules are, what the site owner's obligations are and to reduce the arguments (and threats of stupid lawsuits) if they need to boot someone off, withdraw service, or whatever.

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"And if anybody was qualified, they'd also know that they shouldn't!" Why would that be? –  H.B. Dec 13 '11 at 21:25
    
Insurance / liability, violation of client-attorney privilege, various legal ethics concerns, etcetera. –  Stephen C Dec 14 '11 at 5:08
    
That does not make much sense to me, you can disclaim liability; the client-attorney privilege is just that, privilege that can be used in court and i cannot think of any "legal ethics concerns" either. –  H.B. Dec 14 '11 at 10:09
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This really depends very much on the country you're in.

  • In some countries ToS is just CYA for the owners.
  • In some countries you're required to have ToS, and it's considered contract between owner and client (thus owner can be held legally responsible for not following his own ToS).
  • In countries with codified law, the law always has precedence over ToS, thus any parts of ToS that contradict it are invalid. This creates kind of weird situation, when service is located in one country, but clients are connecting from another.
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A ToS is designed to protect the page owner. If you have any reason to believe that others using your page might try to take advantage of you in any way, then you should have a ToS to address those concerns. In actuality, there is nothing requiring that you have one and default legal conditions are what you can convince a jury or judge of should the need arise. I am not a lawyer though, so take this with a grain of salt.

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depends on the country. Under German law for example a website owner can be held legally responsible for the content of any website he links to, directly or indirectly, unless he posts a disclaimer. Were his site a forum or blog, that would extend to any links posted by his members in their posts or comments. –  jwenting Apr 20 '11 at 6:35
    
Very true, but as I said, not a lawyer. –  MaQleod Apr 20 '11 at 6:39
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On a more mundane note it protects you if you ban someone for being a jerk. Honestly I think internet jerks are a lot more common then wana-be-bombers.

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you'd probably be legally responsible for any and all illegal activities performed through your service by its members.

So if it were used by some terrorists to communicate about the next Oklahoma City bombing, you could possibly be arrested and convicted for it.

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-1 - this is plain wrong. –  Stephen C Apr 20 '11 at 13:17
    
not wrong at all. Maybe it doesn't happen (yet?) in the USA, but there's more countries out there where that's the law. –  jwenting Apr 21 '11 at 6:26
    
So, you say, if i do not explicitly say in my TOS that I personally forbid you to do whats already illegal, i would be liable? I know that lawyers have sometimes some strange ideas, but that seems a little far fetched. i mean, could you sue the subway company that owns the subway where a terrorist blows himself up, because it forgets to mention that "you are not allowed to use any of the company's property to illegal acts, especially, but not limited to, terrorism"? –  keppla Sep 23 '11 at 7:32
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