Is Your Website Legal?
How To Be Sure Your Website Won’t Get You Sued, Shut Down or in Other Trouble — Book Excerpt
Is Your Website Legal?: How To Be Sure Your Website Won’t Get You Sued, Shut Down or in Other Trouble is an interview-based book in which small business attorney Suzanne D. Meehle answered Jacquelyn Lynn’s questions about what you need to know and do to protect your website and your business. This is the first two sections.
Understanding the Legal Issues that Affect Your Online Presence
Jacquelyn Lynn: When we talk about websites, we’re talking about your company’s online presence, whether you operate exclusively online or you have a physical location plus a website. How important is it for small business owners and entrepreneurs to be aware of the legal issues affecting their websites?
Suzanne D. Meehle: Very important. Whether it’s a website or social media that they’re using, they have to police the content and they have to be very careful because copyright law in particular carries statutory damages and they’re heavy.
The other things they have to be aware of are trademark and branding usage and how to do that right. And then there’s plagiarism. You can get into a lot of trouble by lifting somebody else’s work, putting it on your site and saying, “Here’s my blog post.”
The other place where I see people making big mistakes is on social media. For example, they will make references to somebody else and it will be construed as being disparaging to that person. Even if it’s making a comparison to a competitor, if you do it the wrong way, you can end up in litigation.
JL: Of course, we know that litigation is expensive and time-consuming. And just being involved in a lawsuit can damage your reputation, even if you’re in the right.
SDM: We advise our clients never to litigate on principle. Only litigate when the harm is going to be detrimental to your business or when you are not able to get a dispute resolved. And really, even then, look at the harm it’s doing to your business before you decide to sue, because litigation — it’s not just expensive, it is so expensive that I have seen it take businesses under. If you are just getting started and you don’t have the cash reserves to fight a big fight, then litigation is almost never the way to go.
JL: So what you’re saying is, avoid getting yourself into a situation where you might have to defend yourself in court — is that correct?
SDM: Yes, and there are a lot of ways to do that.
Information You Should Include on Your Website
JL: When I talk with people as a writer about web content, I’m typically approaching it from a marketing or search engine optimization angle. Let’s talk about it from the legal perspective. What content needs to be on a business website?
SDM: There are a number of things. Let’s begin with a privacy policy.
The biggest mistake people make is they use a generic privacy policy and then they don’t follow it. If you are collecting an individual’s data, personally identifiable information — if it’s something where I can link together the person’s name, their address, their phone number, enough information about them that their identity could be stolen, think of it that way, then I have to take reasonable steps to protect those people. And you usually need to put that into a privacy policy. And that privacy policy has to be something you actually follow.
The problem is, they’ll say, “Wickets, Inc. has the same kind of product we do, we’re just going to borrow their privacy policy.” They’ll put it on their website and then they don’t follow that privacy policy. What their policy says they’re going to do is not what they actually do. And that’s what gets them into hot water.
JL: What other documents or statements should be on a website?
SDM: If you’re selling a tangible product or if your service is the kind of thing that would normally have warranties associated with it, you’d want to have warranty disclaimers for things like fitness for a particular purpose or warranties merchantability, which means you’re selling your product as is, you’re selling your services as is, and you’re not making special warranties regarding it.
You’re never going to be able to disclaim all liability. If what you do harms somebody, then there’s going to be liability. But you’re not making special promises and you want those disclaimers clearly stated on your website.
If you have a website, particularly if you have a website that other people can post their content on, you want terms of use that specify how they are allowed to use the website. You also should have a terms of use statement if you are collecting credit card information and doing sales on your website. The terms of use is what’s going to say, you can do this but you can’t do that on our site. If you click “buy it now” or you click “I agree,” then you’re accepting our product terms of use, you’re accepting our services terms of use.
JL: How do small business people develop these statements? I think for a lot of them, if you say, you need a privacy statement, the reason that they’re going to somebody else’s website and copying it is because they don’t have a clue how to put it together.
SDM: Exactly. Of course, we say they should use a lawyer. But if you’re not going to use a lawyer — and I’m not naïve, I represent small business owners exclusively. I know that they go out and write their own contracts. And I’ve had them come to me and say, “Can you just look at this? Can you just review it?” after they’ve drafted something. I’m more than happy to do that.
That’s something you can do — draft the documents yourself with the aid of some self-help resources, but ask your lawyer to take a look at them. The reason that I say have an attorney look at it is: Even if you don’t know what you’ve put in those documents, by posting them, you’re agreeing to them, and the terms of use, the privacy policy, copyright policy, everything will be construed against the drafter. That means if you’re the small business owner and you just pulled it from somebody else’s site and don’t understand what’s in your privacy policy, for example, then if you violate it, then the court’s going to say, “Well, you’re the one who drafted it, how did you not know what was in your privacy policy?”
JL: And this is not the time to say, “No, I plagiarized it.”
SDM: Right. That is really not a good idea.
This is one of those really good times to utilize an attorney. If you can’t hire an attorney to write the policy statements, write them yourself and hire an attorney to look at them. If you can’t do that, then use a site like LegalZoom or Rocket Lawyer where you can go on the site and use a forms tool. Pay attention to the questions they’re asking you. Look at how it’s filled in and make sure you’re actually doing those things. Because this is your policy. You’re saying “My company will do this.” You’re making promises to the world. It’s really important to know what’s in there.
Even then, I would still say, if you can squeeze out $500 to have your attorney look at it, do it. It’s going to be money well spent.
At a minimum, do it that way. Don’t just pull somebody else’s stuff. Know what’s in the statements you’re putting on your website. And take the time to read through them and make adjustments so they actually conform with what you are doing.
It would almost be better to write out it out yourself than copy someone else’s policy that you don’t understand and aren’t going to follow. For example, you can simply say, “We promise we will never sell or give away your information. We will collect your information, we will store it for repeat purchases with your permission.” You’re not going to have all the boilerplate language you probably should have in there, but at least you know that this is your policy and this is what you’re really going to do.
JL: Let’s talk about the tone of these disclaimers and statements. I’ve seen some that make me cross-eyed and some that are almost entertaining. Should they be very legal and formal or is it okay to make them more chatty and casual?
SDM: They can be more chatty and casual. There is nothing wrong with plain English, despite what some of my colleagues might say. As an attorney, I’m sure I’m in the minority here, but there is nothing wrong with making it a plain English statement: This is what we say we’re going to do, this is what we’re going to do. Just know that you are making promises to the public, to the world, that this is what you’re going to do with your user’s information, this is how you’re going to handle copyright issues, this is how you’re going to handle privacy, and this is what you allow and don’t allow on your website.
JL: Does the type of business or purpose of the site have an impact on how these documents are written and what they cover?
SDM: Yes. For example, if you have a personal media-oriented website that you’ve built where people are posting their own copyrighted photos, their own texts, their own information, using it for video sharing or something, those kind of sites have much more sensitive copyright issues and different privacy issues from a site that is selling a product or advertising somebody’s services. Each of those situations can be very different.
JL: You even get into a middle ground in that area, where a site does both. I interviewed a mobile app developer once who gave me this example: One of his clients is a motorcycle dealership, and on their mobile app, they not only have the bikes that they have for sale, they also have a section on their mobile app where their users can upload their own pictures of themselves riding the bikes and doing other things. I guess even that would need some sort of a copyright statement.
SDM: Any time you have users uploading their own content, you should have a terms of use, and it has to go hand-in-hand with a copyright policy. And the copyright policy has to have a statement — and this one’s easy. If you search Digital Millennium Copyright Act, DMCA, and DMCA statements, you’ll find this. The U.S. Copyright Office has specified: you have to say this and you have to do these things. But you actually have to do them. You can’t just say, here’s who our copyright agent is and put your attorney’s name and address on there. You actually have to fill out the form, file it with the Copyright Office, so that they have a record of who your agent is. That way, if somebody says, “Hey, that’s my photograph, they can’t put that on their website,” they can look it up at the Copyright Office, determine who the copyright agent is, and send them a take-down letter.
All of this is very formulaic, it all happens the same way every time. When you get a DMCA take-down letter, there are procedures that have to be followed. It’s all formulaic, and you put that in your copyright policy. If you are allowing people to upload their own content, that is essential. If you don’t have that, you’re as liable for the copyright infringement as the person who posted the infringing content, and that could be nasty.
But the good news is it’s easily handled. This is one of those things where a form really does work. That’s something you have to be aware of and handle it.
JL: So it’s okay to keep it simple?
SDM: Yes. There’s no need for all of the formal legalese around all of this stuff. You can say, “We promise we’ll never use your data, we’ll never sell it, we’ll never give it away, we’ll never share it with anybody.” You can say that plainly, and that’s fine, as long as it’s true.
If you say, “We reserve the right to share your data with our partners so that they can provide services to you,” that’s a different statement. But if you’re going to share it with people and sell your mailing list, you need to put that in your privacy policy. That needs to be spelled out so people can opt out if they don’t want that to happen.
Excerpted from Is Your Website Legal?: How To Be Sure Your Website Won’t Get You Sued, Shut Down or in Other Trouble by Jacquelyn Lynn. Part of the Conversations series. Ebook only. Available on Amazon, Barnes & Noble, Apple, Kobo, and more.