Legal Landmines
No I'm not a lawyer, but I do play one on TV. Seriously though,
in the case of operating an online presence and the subsequent legal
issues that follow, what you don't know may very well hurt you.
Operating in the virtual world entails the same - or potentially
greater - legal risks as operating in the real world. These risks
take many forms: copyright infringement, trademark infringement,
copyright ownership, liability, breach of confidentiality, libel
and slander, just to name a few.
A surprising number of companies don't post a Terms & Conditions
of Use agreement on their site. That mistake could become a costly
one. Of those companies that do post legal notices, many such documents
are horribly incomplete.
Unless you specifically disclaim otherwise, you are implicitly
endorsing other sites when you link to them. Thus, a dissatisfied
- or worse, ripped off - user of one of the sites that you link
to could sue you for "recommending" them.
Disclaimers of liability must be in ALL CAPS to be legally enforceable.
It's not uncommon for a Web designer to reformat content that is
in ALL CAPS to lower case (after all, ALL CAPS is considered screaming
on the Internet, and thus, in bad taste). In doing so, of course
he or she has concomitantly invalidated the disclaimer, albeit unwittingly.
If you have an online community on your site, such as a discussion
forum, newsgroup, or chat room, you'll need an expanded Terms &
Conditions. In fact, a separate "Discussion Forum/Chat Room Agreement"
may be in order (see www.writers.net/legachatroom.php for an example).
You will need to assert that:
- You do not guarantee that the user-contributed content is truthful,
accurate, or reliable.
- Nor do you endorse any of the opinions of your users.
- Nor are you responsible for monitoring material posted by users.
In addition to posting legal notices on your Web site, you should
also post a "privacy policy" conspicuously on your site. A privacy
policy addresses what you'll be doing with the user's information,
both now and potentially in the future, who you will share it with,
and in what circumstances.
Some businesses will refuse to do business with you if you don't
have an adequate privacy policy posted on your site? IBM for example,
will not advertise on sites that do not post a privacy policy that
they find acceptable.
Of course posting a privacy policy means that you will have to
abide by it, with no exceptions. Don't think for a minute that you
can revoke or weaken a privacy policy once you've already published
it on your site, or you may end up on the wrong side of a lawsuit!
Don't forget to display copyright statements at the bottom of every
page of your site, not just on your home page. This will help protect
you from copyright infringers using "innocent infringement" as a
defence, whereby they claim that they didn't know that the page
was copyrighted. This is an issue because web visitors can enter
your site at any point through search engine queries. They may never
even see your home page.
U.S. law provides further protection against copyright infringement
to those who register a copyright with the Library of Congress.
The cost is a mere $20 and a few forms to fill out. The benefit
is that you can claim statutory damages for future infringements
in a lawsuit rather than having to prove actual damages.
You may be shocked to learn that you may not even possess the copyright
to parts of your Web site. If you contracted with outside vendors
to develop your Web site, they own any and all graphics, HTML and
programming code that they created for you. You can obtain copyright
ownership from your contractors by executing a "work for hire" agreement,
copyright assignment, or Web development contract with them.
While there's no substitute for having a good lawyer, many of these
legal landmines can be dealt with cost effectively with standard legal
"templates." The book Internet Legal Forms For Business (ISBN
096391734X) offers a dozen such templates. Commentary from the authors
accompanies each form, including an overview of applicable situations,
a checklist of relevant issues and tips for negotiating with the other
party. The book includes a sample:
- copyright assignment agreement;
- content license for text, photo, or video material;
- Web site Terms & Conditions of Use;
- Web site development contract;
- Internet advertising contract;
- Internet use policy;
- clickwrap agreement
- linking agreement
- permission-to-link form, and
- domain transfer agreement.
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