Like you, I often waste innumerable hours surfing the web. I regularly see sites without the proper legal documentation. Yes, I look at these things. Community sites tend to be the biggest offenders. With this in mind, let’s dig into why a community website must have terms of service.
Our Community Site
Since legal articles can be a tad bit dry, let’s come up with an unusual community site…say a nudist site. Members of the site will be able to communicate with each other in a forum-like atmosphere and post user-generated content such as their photos, videos and what have you. The community area will be password protected, but anyone can join the site.
So, what legal issues does this site potentially face? A host of them and the terms of service would need to cover all of them.
What if someone uploads an image of their nudist family and there is a two-year-old in the picture? While most people would not consider this child porn, any number of law enforcement officials would assert as much. A child porn charge is the last thing anyone wants to face.
Your terms can help prevent such a situation by requiring all members to be a certain age before signing up. One would also include strict prohibitions regarding the content members can upload. These prohibitions also need to be communicated to all members when they sign up in plain English.
The federal government has issues with nudity. Most adult companies must comply with section 2257 of the United States Code. This section requires companies to maintain model releases for any individuals depicted in images. Does the law apply to images on a nudist site? It would be necessary to research the topic. If so, the information would need to be incorporated into the terms of service.
If a member posts a nude photo on their site, how can you use it? A license clause would be used to address the issue. The minimum license would allow you to republish the images on the site.
Any site that allows members to post content must comply with the Digital Millennium Copyright Act. The reason is a member may post content that they do not own or have the right to post. The real copyright owner can then sue that person and your site for copyright infringement. The “DMCA” creates a safe harbor from such claims for sites so long as you follow certain requirements such as designating a DMCA agent. YouTube and Facebook avoid spending every minute of every day in court defending copyright infringement lawsuits because of this safe harbor.
While your community site probably isn’t going to have child porn and nudity issues, it will need to address privacy, content licensing and DMCA topics. The terms of service are the place to do this, which is why every community site needs custom legal documents.
Contact me if you have or are launching a community website and need legal documents.
Richard A. Chapo, Esq.