What are website terms of use?
Are website terms of use legally binding in South Africa?
“Information is not without legal force and effect merely on the grounds that it is wholly or partly in the form of a data message (s 11), and an agreement may be formed wholly or partly by means of data messages (s 22) — so an online agreement, and terms incorporated by reference into it, are legally valid.”
“A supplier offering goods or services for sale, hire or exchange by way of an electronic transaction must make available specified information on the website — including its identity, contact details, a description of the goods or services, the full price, and the terms of the agreement — before the consumer places an order.”
“A supplier must not offer to supply goods or services on terms that are unfair, unreasonable or unjust (s 48), and any term that limits the supplier’s risk or liability, constitutes an assumption of risk by the consumer, or imposes an indemnity must be drawn to the consumer’s attention in a conspicuous, plain-language manner before the agreement is concluded (s 49).”
When you need a Website Terms of Use
- When you launch any public website, web app, or online platform where you want to set the rules for use, protect your content, and limit your liability for the information you publish.
- When users can create accounts, log in, or interact with the site — a clickwrap “I agree” at sign-up is the cleanest way to prove they accepted your terms.
- When the site allows user-generated content — comments, reviews, uploads, profiles — and you need a licence to host and display that content plus rules against unlawful or abusive material.
- When you sell, hire out, or exchange goods or services by electronic means, where ECTA section 43 requires specific supplier and pricing information to be disclosed on the site.
- When your users may be consumers, so your disclaimers, liability caps and indemnities must be drafted to survive the Consumer Protection Act rather than be struck down as unfair.
What a Website Terms of Use should contain
Acceptance and assent mechanism
State clearly how the user accepts the terms and when they become bound. For anything important, require active clickwrap acceptance (a ticked “I agree” box) rather than relying on passive browsewrap, because South African courts look for real consensus. Record that continued use after a change constitutes acceptance only where that is genuinely communicated.
Permitted use and prohibited conduct
Define what users may and may not do on the site — for example no unlawful, infringing, defamatory, or malicious activity, no scraping or reverse-engineering, no interference with security. Clear conduct rules give you a contractual basis to suspend or terminate accounts and to remove offending content.
Intellectual property in site content
Confirm that the text, design, logos, code, and other content on the site belong to you (or your licensors) and that users get only a limited, revocable licence to view and use the site for its intended purpose. This stops users copying or republishing your material and protects your brand and content.
User-generated content licence
Where users post content, take a licence from them to host, display, reproduce, and adapt that content as needed to operate the site, and require them to warrant they have the rights to post it. Without this licence you have no clear right to display what users upload, and no recourse if their content infringes someone else’s rights.
Third-party links and content
Make clear that links to external sites are provided for convenience, that you do not control or endorse third-party content, and that the user follows such links at their own risk. This limits your exposure for material on sites you do not operate and for changes to third-party services you integrate with.
Disclaimers and limitation of liability
Disclaim warranties on the accuracy and availability of the site and cap or exclude your liability for loss arising from its use, to the extent the law allows. Where users are consumers, section 49 of the Consumer Protection Act requires these clauses to be conspicuous and in plain language, and the most serious risk-shifting terms separately acknowledged — a buried cap is unenforceable against a consumer.
Indemnity
Require users to indemnify you against claims arising from their breach of the terms or their misuse of the site — for example claims over content they posted. As an indemnity is one of the clauses singled out by section 49 of the CPA, it must be brought to a consumer’s attention clearly rather than hidden in the body of the terms.
Governing law, jurisdiction and changes
Specify that South African law governs and identify the courts that have jurisdiction, and set out how you may amend the terms and how changes take effect (with notice, and a “last updated” date). Include the ECTA section 43 supplier and pricing disclosures where you transact online, and link prominently to your privacy policy.
Browsewrap vs clickwrap terms in South Africa
| Feature | Browsewrap | Clickwrap |
|---|---|---|
| How presented | Posted via a footer or “Terms” link; no active acceptance | User must tick “I agree” or click “Accept” to proceed |
| Proof of assent | Weak — relies on arguing that use implies agreement | Strong — a recorded, deliberate act of acceptance |
| Risk of a clause being unenforceable | Higher — a user may show they had no real notice | Lower — notice and agreement are evidenced |
| Best for | Low-stakes, purely informational sites | Sign-ups, checkouts, accounts, any binding obligation |
| CPA section 49 clauses (liability, indemnity, risk) | Likely to fail the “conspicuous, drawn to attention” test | Can be surfaced and acknowledged at the point of acceptance |
Common South African pitfalls
- Relying on browsewrap for binding obligations: posting terms behind a footer link and assuming users are bound is risky. South African courts look for genuine assent, so account, payment and other high-stakes flows should use active clickwrap acceptance, not passive browsewrap.
- Burying liability caps and indemnities in dense text: where users are consumers, section 49 of the Consumer Protection Act requires limitation-of-liability, risk and indemnity clauses to be conspicuous and in plain language, with the most serious drawn separately to the consumer’s attention. A hidden cap can be refused enforcement.
- Ignoring ECTA section 43 disclosures on a commercial site: if you offer goods or services for sale, hire or exchange by electronic means, ECTA requires you to publish your identity, contact details, a description, the full price, and the terms. Leaving these out lets the consumer cancel the transaction within 14 days of receiving the goods or services under section 43 — a separate remedy from the 7-day cooling-off right in section 44.
- Over-broad or unfair terms: a clause that is one-sided, surprises the consumer, or shifts unreasonable risk can be struck down under sections 48 to 52 of the CPA. Drafting terms that are reasonable and balanced is what keeps them enforceable, not stacking the deck against the user.
- No user-generated content licence: hosting reviews, comments or uploads without taking a licence from users leaves you with no clear right to display their content and no warranty that it is theirs to post. This exposes you to takedown and infringement claims.
- Treating the terms as the privacy policy: terms of use govern how the site may be used; they do not satisfy POPIA’s separate duty to tell users how their personal information is processed. The two are different documents — link the privacy policy from the terms rather than collapsing them into one.
Frequently asked questions
Are website terms of use legally binding in South Africa?
Yes. Website terms are binding as an ordinary contract once the user has genuinely assented to them. The Electronic Communications and Transactions Act 25 of 2002 confirms that online agreements have full legal force and that terms can be incorporated by reference if they are reasonably accessible. Active clickwrap acceptance gives the strongest proof of agreement.
What is the difference between browsewrap and clickwrap?
Browsewrap terms are simply posted via a link and rely on the argument that using the site implies acceptance. Clickwrap terms require the user to take an active step — ticking “I agree” or clicking “Accept”. In South Africa both can form a contract, but clickwrap gives far stronger evidence of consensus, so it should be used for accounts, checkouts and any binding obligation.
Do I legally need terms and conditions on my website?
There is no single law that compels every website to have terms, but they are strongly advisable to allocate risk, protect your content and set the rules for use. If you sell, hire out or exchange goods or services electronically, section 43 of ECTA requires you to publish specific supplier, pricing and contractual information on the site, which the terms typically carry.
Can I limit my liability in my website terms?
Yes, but within limits. You can disclaim warranties and cap liability, however where users are consumers section 49 of the Consumer Protection Act requires any clause limiting liability, imposing an indemnity, or shifting risk to be conspicuous and in plain language, with the most serious risks separately acknowledged. A liability cap buried in browsewrap can be unenforceable against a consumer.
What is the difference between terms of use and a privacy policy?
Terms of use are a contract governing how people may use your site — permitted conduct, intellectual property, liability and so on. A privacy policy is a separate POPIA notice that tells users how their personal information is collected and processed. They serve different purposes, so you need both, with the terms linking to the privacy policy.
Does the Consumer Protection Act apply to my website terms?
It applies where your users are consumers — broadly, natural persons and smaller juristic persons dealing with you in the ordinary course of your business. Then sections 48 to 52 prohibit unfair, unreasonable or unjust terms and section 49 governs how liability, indemnity and risk clauses must be presented. Business-to-business dealings above the CPA threshold are less constrained but still governed by the common law.
Can I change my website terms after users have agreed?
You can, if the terms reserve the right to amend and you communicate changes properly. Simply altering the posted terms and relying on continued use is weak, especially for important changes. Best practice is to give notice, show a “last updated” date, and for material changes obtain fresh acceptance so there is clear evidence the user agreed to the new version.
Who owns content that users post on my site?
The user generally retains ownership of what they create, but your terms should take a licence from them to host, display and adapt that content so you can operate the site lawfully. The terms should also require users to warrant they have the rights to post the content and to indemnify you against claims arising from it.
Sources & authority
- Electronic Communications and Transactions Act 25 of 2002 (ss 11, 22 & 43)
- Consumer Protection Act 68 of 2008 (ss 48–52)
This guide is general information, not legal advice. It reflects the law as at June 2026.