Do I have to create terms of service or privacy agreements?

No. The elements required for Section 230 immunity to apply to web site publishers and other interactive computer services do not include the establishment, implementation or publication of standards of acceptable use for the site or statements addressing its handling of users’ personal information.

However, having such agreements is a good idea. The terms of service put users on notice of the type of content you deem suitable for publication on the site and reserve your right to edit, remove or simply decline to publish in the first place material that may be inaccurate, offensive, expose you to legal liability or otherwise fail to conform to these standards.

Likewise, a privacy agreement lets people know what you will do with the personal information they provide when registering for the site or collected while they browse it, namely the circumstances under which, if any, you will share that personal data with third parties, including law enforcement or judicial officers. The publication of this language may help shield you from liability under various state and federal laws addressing individuals’ private information.

Similarly, the terms of use afford you an opportunity to publish language that may help protect you in lawsuits brought by third-party content providers claiming that your use of their submitted material somehow harmed them.

To increase the likelihood of this protection, however, the agreement’s language must provide the host with wide discretion over editorial actions and make clear that the policy is just that: a policy with no force of law binding the parties to the agreement.

Language in the privacy policy published on The (Cleveland) Plain Dealer’s web site may have shielded the newspaper from liability in a lawsuit alleging that the paper breached contractual promises in its privacy policy when it disclosed to the public that anonymous comments on its site, disparaging a local lawyer, were made using the e-mail address of a judge who was presiding over some of that lawyer’s cases. However, Cuyahoga County Judge Shirley Strickland Saffold dropped her $50 million suit against the paper and its reporters and editors and reached a financial settlement with Advance Internet, of which the paper’s web site is an affiliate.

In an interview she gave to The Plain Dealer shortly after the incident occurred in March 2010, then-editor Susan Goldberg acknowledged that the paper had broken with its tradition of allowing commenters to hide behind screen names. However, it served notice that anonymity was a habit, not a guarantee, Goldberg said.

The paper’s unmasking of the judge sparked an ethical debate among journalists, many of whom expressed concern about the potential chilling effect on speakers who know that their personal information may be disclosed, and coincided with major media outlets’ announcements that they were considering revisions to their commenting policies that would discourage anonymous posts.

In the end, this issue is most likely one of ethics, not legality. Online content providers can likely help ensure this result by explicitly stating that their sites’ privacy agreements are not legally binding contracts.

Web-based publishers wanting to avoid the issue entirely may consider taking steps to hide the private identifying information of online commenters from themselves or their editorial staff. If this option is not available or feasible, prudent bloggers and other digital journalists who allow users to comment anonymously on their sites are well-advised to decide -- either before the site is launched or shortly thereafter -- under what circumstances, if any, they will reveal the identity of an anonymous user. This evaluation should consider specific scenarios like the one that arose in Cleveland, as well as more general issues that come up daily, including determinations of whether to regularly monitor e-mail addresses for potentially publishable stories or otherwise, and whether to disclose this fact in a privacy policy.