A well structured, informative website is an essential element of modern business. However, many organizations don't fully appreciate the legal responsibilities that accompany public communication through an official company website.
While laws vary by country, libel and copyright infringement are nearly universally illegal. Issues like copyright infringement are just as serious online as they are in any other medium. You must be aware of the legal concerns surrounding web content.
Keep reading as we take a look at six common legal issues surrounding web content and highlight the steps you can take to remain compliant.
1. Missing or Inadequate Website Content Disclaimers
The presence of a disclaimer cannot completely absolve you of liability for the outcome of use of your site, but the absence of one leaves you with no protection at all. The liability concerning missing disclaimers depends on the type of disclaimer overlooked and the resulting damage.
Why is a website disclaimer important? If your website content was to lead a consumer to believe something that caused them harm, forgoing an opportunity or taking action based upon information provided on your website, you can be held liable. A disclaimer (written and presented in the correct manner) can guard against this.
A well-crafted disclaimer can cover several elements of your website’s content. While you’ll of course be making every effort to ensure that your content is accurate and up to date at all times, a disclaimer can clearly state this may not infallibly be the case. Similarly, potential copyright issues, the content found by following third party links and the transmission of viruses could be covered.
Disclaimers are necessary and when used correctly, have the potential to help determine the validity of a lawsuit brought against you. It should be remembered however, that disclaimers are not always considered legally binding. Because of this you should ensure that you follow best practice guidelines when creating yours, as outlined below.
A poorly constructed disclaimer has the potential to be just as damaging as one which is entirely absent. Beware of a false sense of security; websites are a dynamic medium, often receiving contributions and updates from a wide range of sources. It’s advisable to regularly review your disclaimer to ensure that it covers every element of content that your website currently incorporates.
Remember that the way in which you display your disclaimer can also have an impact upon its validity. In order to maximise the chances of legal protection, beyond the “fair warning” a disclaimer represents, consider including yours as part of your T&C policy. As an “opt in” agreement, often presented via the click-wrap method, you’ll enjoy boosted legal recognition, as consumers have actively reviewed and provided acknowledgment.
- Six Disclaimers You May Need to Include on Your Legal Website or Blog
- Do I Need a Medical Disclaimer for My Website?
2. Deficient Privacy Policies
While the mandatory nature of privacy policies does vary from state to state in the US, it’s safe to assume that your website should have one. Data collection is a hugely important (and notoriously thorny) element of today’s web, and your website needs to present total transparency in this area.
Enterprises operating within certain heavily regulated sectors are especially vulnerable to the impact of inadequate privacy policies. These include websites which are aimed at an audience of children under 13 years old, financial institutions and health care service websites.
When it comes to regulation, the US doesn’t have a legal equivalent to Europe’s strict GDPR practices (with policy being governed on a state by state basis.) However, if your enterprise does business with Europe, you may want to review your current policy with a view to this.
Beyond the realms of data and privacy, hundreds of regulations govern the web, and it isn't always easy to navigate the maze of legislation.
Many laws are industry-specific, and companies that fall under their purview must explicitly follow them. Failure to comply with federal laws such as Graham-Leach-Bliley, COPPA, HIPPA, or international conventions such as the UK's General Data Protection Regulation (GDPR), could lead to severe penalties.
Whilst injunctions and fines relating to failure to comply with these laws are costly, the expenses associated with defending and litigating liabilities surrounding these laws are often even more expensive and troublesome.
You need to ensure that you’re covering the technical elements of data (IP addresses, email etc.) as well as the personal aspects (name, address etc.) Also consider covering your use of any monitoring tools such as Google Analytics, and outline the action you're taking to protect the security of the data in your possession.
With regard to broader federal regulation, consider putting an internal regulatory compliance committee in place. This committee would be responsible for ensuring the company is following federal regulations, outlining policies to comply with legislations far in advance of their implementation.
Legislation often comes with some ambiguity, which makes stringent compliance difficult. As a result, it may be necessary to get the assistance of outside legal counsel to organize compliance efforts.
- Writing a GDPR compliant policy
- Building a compliance department
3. Intellectual Property Issues
Damages relating to intellectual property infringement can vary from an injunction to a several million dollar judgment. If your website infringes on a patent, trademark, copyright, trade secret, or trade dress, this will often lead to it being judicially removed. If you rely on your website for communication and sales, the consequences can be catastrophic.
If you or other leaders in your organization become aware of such a violation and choose not to act, the court may award punitive damages and order you to pay the property owner's attorney fees.
Intellectual property is a tremendous corporate asset. In addition to respecting the intellectual property of others, you own must be protected at all costs.
A single trademark or patent can make or break your company's success in the marketplace. You can lose your company's intellectual property through mere administrative mistakes or ill-advised contracts. Taking the appropriate actions to maintain and protect your intellectual property is crucial.
Everyone who touches your company's site must be aware of the proper use of copyrighted material, trademarks, and patentable processes. Create a detailed policy that addresses intellectual property use and dissemination.
Your company must own all intellectual property on your website. If your organization doesn't own the property, it must be properly licensed to display it on your website. Never assume that material that you don't own is "freeware" without documentation proving it.
When it comes to protecting your own intellectual property portfolio, there's no one-size-fits-all approach. To determine your company's right strategy, you must develop specific policies and processes geared toward protecting your intellectual property. A well-conceived plan to protect your portfolio should be developed before you acquire new intellectual property.
Planning reduces the delays, costs, and potential hardships associated with efforts to regain lost assets. Your coordinated intellectual property plan should include patent protection, trade secret security, trade dress monitoring, and copyright and trademark registration.
Having a solid plan in place not only makes acquiring new intellectual property more streamlined but prevents the disastrous loss of corporate assets.
4. Defaming Statements
Defamation refers to making a false statement about someone or an organization that is potentially damaging to their/its reputation. Defamation covers both slander and libel. In the case of web content, libel is likely to present the more common issue, as this refers to a defaming statement made in a permanent form (i.e. in writing.) However, it should be remembered that slander (oral defamation, i.e. made in a spoken statement) is also possible if use of video content is present.
For a statement to be deemed defamatory, it must be published to a third party (in this case, your website), and the information must be known or suspected to be false.
The law of defamation is complex, and there is no national statute that governs it. A defamation claim can also result in various defenses, such as using the First Amendment or believing the statement was true. Nevertheless, your organization should take possible defamation claims seriously.
With the upswing in the number of websites making use of user-generated content (UGC), defamation is set to become a particularly hot topic. You may find your organisation particularly at risk if your marketing strategies make use of UGC.
Anyone publishing content on your website must refrain from posting defaming information. If a statement is made that may damage an organization's reputation or person, there should be steps taken to identify defamation and eliminate it as soon as possible.
Ensure your employees receive training around defamation; what it means and what the consequences to the company could be if it was held liable.
With regard to UGC, it's important to consider the degree of editorial control that you exercise over it’s publication. If you are deemed to have added defaming content to your website at your own discretion, even if you did not create the content in question, you could still be held liable as an author. UGC has many powerful benefits, but most organisations will want to leverage it selectively, so this is an important risk to weigh up.
5. Domain Name Issues
Several legal issues can arise surrounding the creation of a domain. Below are a few examples of domain naming gone wrong.
Typosquatting involves registering a domain name that's similar to an existing one, but including a typo in hopes that consumers reach it by accident. Typosquatters usually make money off paid advertising, as they trick browsers into believing they're on the correct website.
Pagejacking occurs when an individual copies part of an existing website and puts it up on another domain, in an attempt to make it appear as the original. Pagejacking is often associated with phishing schemes, where a fake page gathers passwords, account numbers, and personal data from unsuspecting users.
Cybersquatting occurs when someone registers a domain name that violates the rights of a trademark owner. Usually, the offender intends to extort payment from the owner, keeping the names to auction to the highest bidder later.
Larger enterprises are at higher risk of falling victim to these types of legal issues. While some will be malicious, it’s worth remembering that if you run a partner program or similar you may also want to keep an eye on the way that third parties are presenting their associated services to the public with regard to your own trademarked names, phrases and terms.
Domain name disputes can sometimes be solved by the Uniform Domain Name Dispute Resolution Policy (UDRP), which was created to offer parties an alternative to a lawsuit. The UDRP was created by the Internet Corporation for Assigned Names and Numbers (ICANN), the organization responsible for domain name creation.
However, under their policy, “most types of trademark-based domain-name disputes must be resolved by agreement, court action, or arbitration before a registrar will cancel, suspend, or transfer a domain name.”
However disputes are resolved, vigilance and clear, correctional procedure are vital here. When a domain name issue arises, make sure that your organisation has a clear set of responsive actions, and that legal action can be invoked swiftly to get a quick and efficient resolution before damage can be done.
6. Lack of Rapid Response to Compliance Issues
As this article has shown, a wide range of compliance and regulatory factors need to be held in constant consideration with regard to your company’s website content.
Almost as problematic as failing to put measures in place to mitigate against non-compliance, is failure to effectively coordinate when issues do arise.
When alerted to a compliance problem, who in your company is responsible for solving it? Do you have a system to identify and isolate issues before they occur?
Costly litigation can arise if everyone in your company thinks someone else is handling a dilemma.
Failure of key personnel to coordinate with one another can lead to numerous types of costly litigation—and nowhere is this more concerning than in the realm of the internet. Not only can your organization suffer, but you can be held personally liable if you were made aware of a problem but chose to ignore it.
To overcome this, the key players in your organization must develop a coordinated chain of command.
Create clear protocols and procedures for the creation, review, and implementation of website content. Establishing an internal regulatory compliance committee is a great first step to take here.
Additionally, ongoing training and education for relevant staff members to keep them up to date with the ever changing world of web content compliance will ensure better odds regarding problems being picked up before they become real issues.
Archive Your Website Content to Streamline Litigation
Your organization's website offers you many advantages. While you reap the benefits, it's vital to recognize the legal and compliance requirements that you must meet.
Read our blog post, 6 Reasons Companies Should Be Archiving Their Websites, to learn more about the benefits of website archiving.