Legal Issues with Websites and

Social Media

December 3, 2013Louise Leduc Kennedy

West Hill Technology Counsel | p 978-338-4082

llkennedy@westhillcounsel.com

http://www.westhillcounsel.com/

© 2013 West Hill Technology Counsel, Inc. All rights reserved.

How would you describe your website?

I. Brochureware: simply promotes your company’s

products or services;

II. Blog: a platform for free content created by you; or

III. On-line Store: used to sell your company’s or third

parties’ products, services or content; or

IV. Social Platform: interactive platform that encourages

visitors to contribute content to the site or interact with

other site visitors.

Three Key Elements

Terms of Use

Privacy Policy

Copyright Statement

What will we discuss today?

Legal Issues with Websites and Social Media

1. Asserting IP rights in your brand elements

2. Sourcing and protecting your content

3. Respecting privacy rights

4. Understanding your technology agreements

5. Providing proper disclaimers

Asserting IP Rights in your Brand Elements

In what brand elements has your business invested:

• money?

• time?

• effort?

What are these brand elements worth to your business

now – and when you act on your exit strategy?

Brand Protection Strategy

Identify and protect key brand elements:

• Company Name: ™ or ®

• Company Logo: ™ or ®

• Company Website: ©

• Key Content: ©

Quick Fix

NOT: © 2011 westhillcounsel.com.

RATHER: © 2013 West Hill Technology

Counsel, Inc. All rights reserved.

Sourcing and protecting your content

But I found it on the web . . .

Content Licensing Strategy

Confirm your right to use all content not created “from scratch” by

you or your employees:

clip art

Photos

third party logos

testimonials

articles

visitor contributions

work performed for you by contractors or other outside

vendors

Quick Fix

1. Delete images you obtained from Google Images or

otherwise copied from the web and replace with

images licensed from a reputable image provider

like iStockphoto.com; and/or

2. Ask your web designer about your rights to use the

images they obtained for you (or, even better, put an

agreement in place that protects you if they cut

corners).

Respecting Privacy Rights

Privacy Strategy – Part 1

Understand that you have privacy obligations with respect to:

1. Business Data – employee, customer, vendor information

2. Web site visitors – use of contact forms, newsletter sign-ups

3. Prospective customers – business cards, event attendees, etc

Privacy Strategy – Part 2

Understand your obligations:

a. Under 201 CMR 17 (Standards For The Protection of Personal

Information of Residents of the Commonwealth)

b. Under the privacy requirements for your industry and states and

countries in which you do business

c. Under CAN-SPAM; use a reputable email management solution

Bottom Line:

Create a relevant, customized Privacy Policy that you can comply with;

don’t plagiarize!

Cautionary Tale

Example FAQ: Does your company share

customer information with others?

NO, NO, NO, NO, NO! We promise to respect your

privacy and will not sell, loan, rent, trade or give

away your name, email address or any other

personal information to anyone, ever.

Understanding Your Technology Agreements

But who really reads these?

Technology Agreements Strategy

Read and understand the fine print of contracts you have in place with

the companies that help you make your business website successful.

Even if you have hired a third party to manage your site for you.

Google Analytics

Affiliate Programs

Shopping Cart providers

Understand how these – and all key vendor – agreements can impact

the sale of your business.

Quick Fix (for Google Analytics users)

http://www.google.com/analytics/terms/us.html

You must post a Privacy Policy and that Privacy Policy

must provide notice of Your use of cookies that are used

to collect traffic data, and You must not circumvent any

privacy features (e.g., an opt-out) that are part of the

Service.

Providing Proper Disclaimers

Under the Federal Trade Commission Act:

• Advertising must be truthful and non-

deceptive;

• Advertisers must have evidence to back

up their claims; and

• Advertisements cannot be unfair.

Selected Industries with Disclaimer

Requirements

– Alcohol

– Appliances

– Automobiles

– Clothing and Textiles

– Finance

– Funerals

– Franchises, Business Opportunities, and Investments

– Human Resources

– Jewelry

– Non-Profits

– Real Estate and Mortgages

– Tobacco

FTC Guidelines Concerning the Use of

Testimonials and Endorsements:

• Consumer endorsements must reflect typical experience; if an endorsement does not reflect typical experience, the content must clearly disclose expected results (“results may vary” is not enough).

• Advertiser must disclose any material connection between a person endorsing a product or service and the company selling it; e.g., if an endorser is an employee or relative, or has received payment or free product.

Dot Com Disclosures: How to make Effective

Disclosures in Digital Advertising

To make a disclosure clear and conspicuous:

• Place the disclosure close to triggering claim;

• Take into account multiple devices or platforms;

• Hyperlinks to disclosures should be used with caution;

• Avoid scrolling to find disclosure;

• Follow empirical research about where consumers do and do not look on a screen;

• Repeat disclosures on lengthy web pages; and

• Do not rely on Terms of Use for providing disclosures.

Bottom Line

My company is worth what?

$$$ Strategy

Create Terms of Use for your business website that:

1. Assert ownership of your brand elements and other IP

2. Disclaim warranties; limit damages

3. Include content-relevant provisions (DMCA notice,

industry and content-specific disclaimers)

4. Choose a convenient, pro-business venue for litigation

5. Demonstrate your credibility to other businesses

6. Reflect the state of the law on “browsewrap” agreements

Current Thinking About “Browsewrap”

If your site has any amount of interactivity, at

the point of interaction include: (1) a mandatory

“click to accept Terms of Use” button; and (2) a

scroll-box where the user can view the Terms of

Use without leaving the page.

Not-so-quick, but important, fix

Prepare for a graceful (and lucrative) exit by treating your website and online presence like any other valuable business asset by:

Confirming ownership of (or enforceable rights to use and transfer) content

Drafting effective Terms of Use and Privacy Policy

Securing federal or common law trademark protection and marking brand elements accordingly

Maintaining well-curated subscriber and customer lists

This presentation is provided for informational purposes only and is not intended to provide, nor should it be relied upon as, legal advice