Everything you need to know from A to Z about going online and staying out of legal hot water.
e-Marketing Company
out of legal hot water.
Age
The age of your users impacts the website. According to Federal Trade
Commission regulations through the Children's Online Privacy
Protection Act (COPPA), a website must get a parent's permission for
children under 13 to disclose information. Also, remember that
children under 18 should not be permitted to view information which is
adult in nature. In addition, children under 18 may not be able to
agree to contracts such as your website user agreement and purchase
contracts. Finally, FTC also regulates advertising and other content
directed at children.
Bulletin Boards, Chat Rooms, Etc.
Any posting ability by users should be subject to site submission
rules and a user agreement. The rules should obtain users' consent not
to post pornographic, defamatory or infringing materials and, through
your user agreement, consent to your company not being liable for
other users taking such actions.
Copyright
The footer of your site should display a copyright notice for the
content of the site. The notice should read "© [date] [copyright owner
name] All rights reserved." You should also deposit a copy of the site
with the Copyright Office to record ownership of the site's content,
look and feel. Finally, under the Digital Millennium Copyright Act,
depending on the purpose and the users' activities on the site, your
company may be eligible to register for limited liability offered by
the act for the site. You should consult your attorney for review of
the act and how to register.
Domain Name
When building your website, domain names are an important part. Often
they are directly tied to your business name, your logos and your
brand. Businesses often fail to give proper thought to which domain
name to choose.
Picking a domain name should have the same careful thought as naming
other products or services. Choosing a domain name should include
analysis of trademark law in relationship to the name. Under current
law, domain names may be awarded to trademark holders over others
through arbitration or litigation. This means that having trademark
registration in the same name as your domain name may ensure that you
retain ownership of the name.
Export
If persons from other countries use your site, then you are exporting.
If you sell to such persons, you are exporting the item you sell and
entering into contracts with persons of other countries. If you use
encryption on the site, then you are exporting technology regulated by
the Department of Commerce and Defense. Various government departments
regulate the countries with which U.S. companies may do business and
when a company needs an export license to transmit items, technology
or information abroad. Doing business with certain countries, such as
Iraq, Iran, Cuba, North Korea, Syria, Yugoslavia and others, is
severely restricted. Depending on the information on your site, what
kind of business you do, the technology and information involved, your
site may be subject to these regulations, and you should consult with
your attorney about these business decisions.
Framing
It is important to be careful how your website frames to other sites.
There have been trademark cases regarding consumer confusion over
which site is which, and which site is the source of the content and
data. Also, be careful, because some sites' "terms and conditions" and/
or "user agreements" prohibit collecting and reprinting data displayed
on the site--even if such data is factual, such as times and places
for events.
Giveaways
Sweepstakes, contests, lotteries and giveaways are governed by state
and national laws as to how they must be conducted. Florida and New
York require registration with the state if the prizes are over $5,000
in value. Most important, you should have rules outlining the terms
and conditions of the giveaway. The rules are an offer from the
sponsor which the entrant accepts by entering. The offer, plus the
acceptance, make a binding contract covering the giveaway.
Home Page
On the footer of the home page of the site, you should have a link to
your privacy policy, your user agreement or terms and conditions, and
your copyright notice.
Insurance
Be sure that your business insurance covers website activities. Often
website activities are excluded from errors and omissions and other
business insurance. Lloyds of London and a few other companies have
insurance specifically covering materials and sales via websites,
including security of credit card numbers and other important data.
Jurisdiction
One of the primary reasons for having a user agreement is to better
address the issues of jurisdiction. Under current law, website owners
may be subject to jurisdiction and law in any state or country where
its users are located. Being subject to the law of so many different
locations makes trying to comply with the law and trying to assess
your risk tricky. An attorney can help you consider which markets are
your highest risk and how to lower your risks through consultation
with local counsel or blocking users from those regions. Additionally,
you should consider that many foreign jurisdictions do not offer
protections for intellectual property which are comparable to the U.S.
Therefore, if a user in such a region steals content or software from
your site, you may have little recourse by law, and a hard battle to
fight on foreign soil and in a foreign language.
Kill All the Lawyers
A mean and horrible, horrible joke which Shakespeare penned in Henry
VI and which I hear far too often, although never in reference to me.
Linking
When linking to other sites, you should consider two factors. One is
what word or image you are using for the link and whether it is a
trademark of another site or company. If so, you need the trademark
owner's permission to post the company's trademark on your site.
Second, you should always link to the home page of a website since
there have been "deep linking" cases claiming loss of advertising
revenue which would have been gained if the users had been directed
through the home page.
Metatags
Courts have not permitted use of another company's trademarks as
metatags on competitors' sites. These cases arose when company A used
company B's trademarked term in the metatagging of company A's site so
that when a user looked for company B, company A would come up in the
listing. For example, it would not be permitted for Coke to use the
metatag "Pepsi" on the Coke website.
Notification
Under the Digital Millennium Copyright Act, there are required
procedures for someone to notify a website that materials on the site
may infringe on that person's copyright. If the Digital Millennium
Copyright Act applies, these procedures should be outlined in a
notification policy on the site.
Obscenity
Materials which are considered "obscene" by state or federal law are
not permitted on the internet and, especially, may not be viewed by
children. What is obscene is based on the local standards of the
viewing community. This makes prior determinations of what is
acceptable somewhat complex. If you have questions about your site and
its content, you should review them with your attorney.
Privacy Policy
If you collect any information from users of your site, using cookies
or otherwise, the Federal Trade Commission requires you to have a
privacy policy. The privacy policy should contain an explanation of
how you collect the users' information, how and where the information
is stored, how the user can delete or change the information, and to
whom the information is disclosed and for what purpose. The European
Union also has similar and strict regulations on collection of
information via websites.
Rules for Mail Order
The FTC and some states have guidelines for selling items by mail
which have been extended to cover internet sales. These guidelines
cover return policies, customer contact and other information about
how to inform your customers about your products, shipping and sales
procedures.
SEC
The Securities and Exchange Commission considers a website a means of
disclosing information to the public about a company. Therefore any
information disclosed on your website should be given the same review
and consideration that your company gives all public disclosures with
regard to "forward-looking statements" and "material" information.
Trademark
Trademarking the name of your company, logo, mottos and domain name is
an important part of your business development and should be reflected
on your website. Your nationally registered marks should display an ®
and unregistered marks should display a ™ or SM.
User Agreement
Having a user agreement or "terms and conditions" may be the most
important part of a website. A user agreement requires each user to
agree to be bound by a contract governing his or her use of the site
by clicking "I agree" before being permitted to use the site. Be aware
that simply posting your legal agreement without forcing the user to
click "I agree" prior to use is unlikely to bind your users to the
terms. The user must take an active step through which she agrees to
the terms and must not be allowed to proceed to use the site without
such step.
A user agreement allows a company to:
1. dictate how the site may be used (for example, for reading and
printing materials)
2. dictate how the site may not be used (for example, reverse
engineering the coding tricks, copying content, for illegal purposes)
3. dictate who may use the site (for example, persons over 18, US
citizens)
4. dictate procedures or policies for the site (for example, return
policies, complaint policies, notification of copyright infringement
policies)
5. dictate your company's waiver of implied legal warranties (for
example, implied warranties of noninfringement, fitness for particular
purposes, etc.)
6. dictate the limit of your company's liability for the site, other
users postings on your site, sites you link to, etc.
7. dictate jurisdiction for any disputes relating to the site
View Source
The ability for users to view the source code of nearly all websites
by using the "view source" command in browsers means that the source
code for your website is not protectable by trade secret law. For
something to be protected by trade secret law, it must not be publicly
known, the owner must take some effort to keep the information secret,
and the information must have monetary value to the owner. If the
information is publicly available on the web through "view source,"
the information is not a trade secret.
Warranties
Statements on your website about your products and services are
express warranties to customers. It is important to carefully review
all website text to be sure that what your company promises is true
and corresponds with its other policies and advertising.
When you review, look for statements that are absolute statements
which may be hard to prove or verify if the Federal Trade Commission
were to request that you do so. Examples of such statements are: "Our
printer works with all software," "Our services are the best," and "We
guarantee that our product will always perform perfectly." Also, be
aware that the FTC has specific guidelines that should be followed for
use of the words "free" and "guarantee" in advertising or on your
website.
Also, review your website to be sure that the text matches your
regular business contracts. For example, your website should not
promise a 60-day money-back guarantee if your contract states only a
30-day warranty.
XXX
If your site contains adult materials, be sure to consult your
attorney regarding special legal requirements regarding notice prior
to entering the site, notice requirements under federal regulations
and other laws applicable to the adult entertainment industry.
Your Risk
The law is all about risk. The more time and money you spend following
laws and regulations governing your business, the lower your risks of
fines or successful claims by government or third parties.
Zero
The amount your company may have left after ignoring all the laws,
regulations and risks.
Sincerely,
Scott Richard Adams, CEO
e-Marketing Company