Experienced Internet Attorney
Getting Legal When Starting A Website
Let me ask you a simple question. Would you buy a franchise and open a store in a local mall without hiring a competent attorney to review the legal documents involved, advise you on laws that need to be complied with and generally protect you from potential legal traps? I doubt it. Well, then why are you doing this with your new online business? Are you aware California has no fewer than 10 privacy laws that apply to online websites? Can you name them and the requirements of each? If not, your site essentially has a large target on it. With over 100,000 attorneys in California alone, someone is going to hit that target.
Legal Issues for Established Online Business
If you are already established online, you are reading this page for two reasons. Either you have decided to finally get your act together on the legal front or you’ve had a legal issue arise and need assistance. If neither of these reasons applies to you, they soon will because 99 percent of all websites online are currently violating one law or another.
Terms and Privacy Policies Are Critical Documents
You run a site selling different types of software. The site has a forum where technical issues are discussed and customer service provided. A person in the forum starts bad mouthing one of the software products. A forum moderator gets into a flame war with the person and, well, the moderator suggests the complaining individual’s mother and a camel had an intimate relationship. The person retains a lawyer and sues your website for defamation in New York. The website is based in California.
What if the terms for the website didn’t include a jurisdiction clause limiting legal actions to California? You are going to be taking an expensive trip to New York.
- Content licensing,
- Third party linking liability,
- Hacking, Disclosures to law enforcement,
- Types of personal information collected on users, and
- Compliance with do not track browser coding just to mention a few topics.
The terms and privacy policies of a website may not be the sexiest of topics, but they are critical to limiting the risk you face online. Make sure they are accurate and up to date.
User Generated Content Legal Issues
User generated content is all the rage online. What is it? It is any content created by the user of a website and uploaded to a website. For example, do you have a Facebook account? Anything you post is user generated content. This content also happens to be the epicenter of a huge number of legal disputes online.
It is important to understand you may have a user generated content website without realizing it. For example, do you allow comments by users? These comments qualify, so you need to be familiar with the field and take the necessary steps to protect yourself. The first step is to become familiar with the DMCA.
The single biggest legal issue associated with user generated content is copyright infringement. For simplicity sake, let’s define copyright as the right to copy and distribute a tangible work. These works can include writings, songs, photos, videos, html code, and graphics to mention a few types.
The problem with user generated content is the vast majority of users are unfamiliar with copyright law. They copy and upload copyrighted work without thinking about the legal consequences. You’ve undoubtedly read about various entertainment publishing groups suing teenagers for upload music to websites or file sharing systems. This is a form of copyright infringement.
The question that should be bubbling forth in your mind is a rather simple one. What liability does a website have for content uploaded by a user that infringes on the copyright of another person or business? The answer is you are jointly liable with the user unless you comply with the Digital Millennium Copyright Act of 1998.
Better known as the “DMCA”, this Act was passed by Congress and signed into law by President Clinton in an effort to protect a fledgling Internet from being buried under an avalanche of copyright infringement lawsuits. Facebook, Twitter, YouTube, Tumblr – these sites would not exist without the presence of the DMCA because the legal fees associated with hundreds of thousands of copyright infringement lawsuits would have pushed the companies into bankruptcy before they ever began to grow.
How does the DMCA protect websites? It provides a safe harbor from copyright infringement claims for monetary damages. Practically speaking, this means websites cannot be sued for copyright infringement based on content uploaded to their site by a user. For example, Facebook cannot be sued for copyright infringement if I upload a Rolling Stones song to my account.
The DMCA is a tremendous help to websites. As with most aspects of the law, there is a catch. A website can only take advantage of this immunity if it complies with a series of strict requirements detailed in the law. Known as the “takedown” process, the requirements are a beautiful collection of red tape rules and bizarre time limits that only an Internet lawyer could love.
Yes, I love them. As a website operator, you should as well. However, you need to make absolutely sure you have the proper DMCA policy, agent designation and process in place to handle claims.
This is an area where you want to get expert help. If you get even a single step of the process wrong, you face statutory damages up to $150,000 per infringement.
Privacy Law And Legal Requirements
Whatever your opinion on the NSA scandal, the disclosure of the activities of the Agency have pushed the topic of privacy front and center. As an online business, you need to understand the requirements you must comply with in the field of privacy and then take steps to meet those standards.
The federal government has been woeful in passing privacy laws. Things are different at the state level. California is really leading the way on the topic and has passed no fewer than 10 laws online businesses need to be aware of in one form or another. Other states are quickly following, meaning websites need to be very careful regarding how they handle the topic of privacy. Whether you select me or another attorney, make sure to use a legal professional to avoid the potential legal traps one can run into with privacy law.
The FTC and Advertising Claims
Ah, the Internet. On no other medium will you find such amazing marketing claims. I’ve read a few weight loss claims that are so over the top, Nigerians running the “my uncle is an oil minister who wants to send you $14 million to hold for him” email scam are embarrassed by them. “Lose 30 pounds in 2 weeks!” Ah, the amputation diet.
The web was indeed once the Wild, Wild Web. No longer. The FTC is now hot and bothered about advertising claims being made by businesses online. This is the Agency that squeezed a $40 million fine out of Sketchers for making allegedly false claims about those round soled shoes that supposed toned your legs…but didn’t.
The FTC has issued a bevy of guidelines regarding online advertising. Breach those guidelines and the FTC will pursue you for deceptive or false advertising to the tune of a $16,000 fine per violation. There is never, ever just one violation. Problem areas include:
- Are you sending out advertising statements via social media? You must identify them as ads. For instance, all advertising statements on Twitter must start with “ad:”.
- Do you post reviews for products you receive a commission off of? You better be disclosing that relationship since the FTC guidelines require it.
- Have affiliates for your site? Do you have a program in place to make sure they are following the FTC rules?
- Making benefit claims regarding a product or service? What objective evidence do you have to back up the claim? If none, the FTC would like to speak with you.
- Do you include disclaimers visitors can read by clicking a link at the bottom of your website template? That violates the FTC advertising guidelines.
As an internet attorney, I deal with online advertising issues and can guide you through the minefield. Whether you use me or not, make sure you consult with someone familiar with these rules. It is an area of focus for the FTC.
Use An Internet Attorney
As you can see, operating a business online is far more complicated from a legal perspective then most people realize. The good news is all of these issues can be dealt with for every type of online business. The problem is most online business owners fail to realize these issues exist much less get their site into compliance with them. The last thing you want to do is start thinking about legal issues only after you’ve been served with a lawsuit or had your website yanked from Google.
Now it is time to take the next step. Whether you use me or another internet lawyer, make sure you consult with someone who can protect you from predator plaintiff attorneys looking for easy targets online. Yes, it costs a bit of money, but it certainly beats starting at the roof at 4:00 a.m. worrying whether you are going to lose everything you own. Start your free consult now.