Privacy Policies and the Clear and Conspicuous Rule. There still is confusion about the posting requirements for website privacy policies. The following examples should help clarify what is required to help you comply with the law.
As to the present state of the law, the following applies to almost all state and federal laws about privacy policies and disclaimers. That wording is “clear and conspicuous,” without defining precisely what that is. However, the common definition given by most state and federal regulatory agencies is the language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color.” At a minimum, it should be at least the same size font as the surrounding text.
How and Where to Post Your Website Privacy Policy
Your privacy policy is required by law to be posted on your website in a “Clear and Conspicuous” place that is obvious to your visitors and customers. Ideally, this is on your navigation bar so that it shows throughout all pages on your website and above the fold of the page. Also, the link to your privacy policy should be at least the same size font as the surrounding text and links (though preferably in a larger font size and in a contrasting color).
When trying to determine what constitutes “clear and conspicuous” posting, consider this: What is the likelihood of a visitor to your website seeing your privacy policy? Aside from the description above, any link to your privacy policy that is above the fold of the page seems to satisfy the “clear and conspicuous” rule. Although most website and blog owners put it there, the footer of your webpage is a poor place to put the link to your privacy policy.
SOURCES:
See California Business and Professions Code
See Privacy Compliance Manual From the Attorney General of California
FTC .com Disclosures – How to Make Effective Disclosure in Digital Advertising
