Some things you need to know about… Liability on the Internet, Blogging & Alternative Advertising Katherine L. Early, Esq. January 17, 2008

Just a Few Types of Online Ads Your Website Blogs Banner Ads Pop-up Ads Search Engines Search Engine Optimization Keyword Bidding/Purchasing Directory Sites By industry For individuals Social Networking Sites (“SNS”s) Sites for businesses as well

Your Website

Blogs

Banner Ads

Pop-up Ads

Search Engines

Search Engine Optimization

Keyword Bidding/Purchasing

Directory Sites

By industry

For individuals

Social Networking Sites (“SNS”s)

Sites for businesses as well

Tip #1: Off-line Rules Apply On-line Copyright Trademark Fraud Contract Trade Secrets Theft/Conversion Identity Theft Privacy Laws Other Torts Other Crimes Other Statutory Laws

Copyright

Trademark

Fraud

Contract

Trade Secrets

Theft/Conversion

Identity Theft

Privacy Laws

Other Torts

Other Crimes

Other Statutory Laws

Tip # 2: Read the Terms Types of Agreements User Privacy Advertising

Types of Agreements

User

Privacy

Advertising

Terms Are Everywhere Search Engines: Ex.: Google & Yahoo Auction and Posting Sites: Ex.: craigslist & eBay Social Networking Sites: Ex.: MySpace & Facebook

Search Engines:

Ex.: Google & Yahoo

Auction and Posting Sites:

Ex.: craigslist & eBay

Social Networking Sites:

Ex.: MySpace & Facebook

Social Networking Sites Online Social Networking Sites: online pages that display personal profiles and connect people through social networks Examples: Facebook, MySpace, etc. Dating Sites (match.com, Yahoo! Personals, etc.)

Online Social Networking Sites: online pages that display personal profiles and connect people through social networks

Examples:

Facebook, MySpace, etc.

Dating Sites (match.com, Yahoo! Personals, etc.)

MySpace.com Terms of Use Agreement

MySpace.com Terms of Use Agreement “ Prohibited activity includes, but is not limited to ….” Uses another’s copyrighted work Spamming or phishing “ advertising to, or solicitation of, any Member to buy or sell any products or services through the MySpace Services …” “ displaying an advertisement on your profile …” “ If you … send unsolicited bulk email… or other unsolicited communications. . . you agree to pay MySpace.com $50 for each such unsolicited … communication”

“ Prohibited activity includes, but is not limited to ….”

Uses another’s copyrighted work

Spamming or phishing

“ advertising to, or solicitation of, any Member to buy or sell any products or services through the MySpace Services …”

“ displaying an advertisement on your profile …”

“ If you … send unsolicited bulk email… or other unsolicited communications. . . you agree to pay MySpace.com $50 for each such unsolicited … communication”

MySpace.com Terms of Use Agreement “ Indemnity. You agree to indemnify … MySpace.com …” Advertising agreements for most internet sites contain a similar indemnity clause

“ Indemnity. You agree to indemnify … MySpace.com …”

Advertising agreements for most internet sites contain a similar indemnity clause

MySpace Privacy Policy

Facebook Privacy Policy “ Facebook may also collect information about you from other sources, such as newspapers, blogs, instant messaging services, and other users of the Facebook service through the operation of the service (e.g., photo tags) in order to provide you with more useful information and a more personalized experience. ” www.facebook.com/policy.php

“ Facebook may also collect information about you from other sources, such as newspapers, blogs, instant messaging services, and other users of the Facebook service through the operation of the service (e.g., photo tags) in order to provide you with more useful information and a more personalized experience. ”

www.facebook.com/policy.php

Tip # 3: Create Consent Clicks If you have website permissions, create pop-ups or check boxes to keep track of consent to your terms (Don’t be passive) Idea is to avoid argument there was no contract and provide clear consent

If you have website permissions, create pop-ups or check boxes to keep track of consent to your terms (Don’t be passive)

Idea is to avoid argument there was no contract and provide clear consent

Tip # 4: If ISP Edits/Reviews User’s Content, Might Be Liable Who is liable on-line? Site or User? User Not site in most cases Indemnity clauses (Terms) Limitation on Liability clauses (Terms) Some statutory immunity

Who is liable on-line? Site or User?

User

Not site in most cases

Indemnity clauses (Terms)

Limitation on Liability clauses (Terms)

Some statutory immunity

Websites and Blogs Get Some Immunity Communication Decency Act protects ISPs in libel cases. 47 U.S.C. § 230. Generally, website is immune (neutral conduit) Exceptions : intellectual property claims federal criminal laws consistent state laws certain privacy laws

Communication Decency Act protects ISPs in libel cases. 47 U.S.C. § 230.

Generally, website is immune (neutral conduit)

Exceptions :

intellectual property claims

federal criminal laws

consistent state laws

certain privacy laws

To Edit or Not to Edit? Website/blog may still be liable if it “develops” the information For instance, editing or adding headlines to the content of comments to a blog may make the ISP liable for the contents of the user’s comment

Website/blog may still be liable if it “develops” the information

For instance, editing or adding headlines to the content of comments to a blog may make the ISP liable for the contents of the user’s comment

Employers Can Still Provide Internet Access… Michelangelo Delfino v. Agilent Technologies (2006) 145 Cal. App. 4th 790 (unanimous): employer that provides Internet access to its employees is protected from state tort claims arising from an employee's use of the employer's e-mail system to send threatening messages.

Michelangelo Delfino v. Agilent Technologies (2006) 145 Cal. App. 4th 790 (unanimous):

employer that provides Internet access to its employees is protected from state tort claims arising from an employee's use of the employer's e-mail system to send threatening messages.

Remember: ISP still liable if ISP posting content Immunity is for user’s content

ISP still liable if ISP posting content

Immunity is for user’s content

Tip # 5: Potential Copyright Immunity for Non-Edited User Content Digital Millennium Copyright Act (1998) “ Safe harbors” for ISPs that basically do not add or modify content but just transmit with no discretion must remove the infringing work when obtains knowledge of same and several other conditions to jump through first

Digital Millennium Copyright Act (1998)

“ Safe harbors” for ISPs that basically

do not add or modify content but just transmit with no discretion

must remove the infringing work when obtains knowledge of same and

several other conditions to jump through first

Copyright and the Web We know that users can be held responsible for uploading materials from a 3 rd party without permission

We know that users can be held responsible for uploading materials from a 3 rd party without permission

Copyright Inducement MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005): held file sharing companies could be sued for inducing copyright infringement. "unequivocal indications of unlawful purpose" and "neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software."

MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2005):

held file sharing companies could be sued for inducing copyright infringement.

"unequivocal indications of unlawful purpose" and

"neither company attempted to develop filtering tools or other mechanisms to diminish the infringing activity using their software."

Tip # 6: Collecting Data? Need Safeguards Best practices: Have a web privacy policy and terms of use Abide by them Cover whether and when you might sell information or contact users Have users opt-in to email lists

Best practices:

Have a web privacy policy and terms of use

Abide by them

Cover whether and when you might sell information or contact users

Have users opt-in to email lists

Beware Laws regulating some industries may further restrict use of private information Medical – HIPPA Financial - GLB European Data Laws are strict

Laws regulating some industries may further restrict use of private information

Medical – HIPPA

Financial - GLB

European Data Laws are strict

Ohio Requires Disclosure of Personal Data Breaches ORC § 1349.19: Personal information (such as credit card numbers and passwords) + breached computer = disclosure PR nightmare Other states have similar laws Tip: Secure your computers upfront!

ORC § 1349.19:

Personal information (such as credit card numbers and passwords) + breached computer = disclosure

PR nightmare

Other states have similar laws

Tip: Secure your computers upfront!

Tip # 7: Be Careful Not to Spam or Phish Spamming is mass unsolicited emailing. Phishing is an attempt to get sensitive information, such as usernames, passwords and credit card details, by acting as a trustworthy entity.

Spamming is mass unsolicited emailing.

Phishing is an attempt to get sensitive information, such as usernames, passwords and credit card details, by acting as a trustworthy entity.

CAN-SPAM Act of 2003 Prohibits false or misleading headers Must comply with subject and pornography labeling (i.e., use “SEXUALLY-EXPLICIT” label) No resource misappropriation (e.g., to conceal origin) No harvesting email addresses Realistic Opt-out provision must be made available and adhered to Other (see 15 USC § 7701 et seq .)

Prohibits false or misleading headers

Must comply with subject and pornography labeling (i.e., use “SEXUALLY-EXPLICIT” label)

No resource misappropriation (e.g., to conceal origin)

No harvesting email addresses

Realistic Opt-out provision must be made available and adhered to

Other (see 15 USC § 7701 et seq .)

CAN-SPAM Can Affect Third Party Third-parties can be liable if knew about the SPAM and receives or expects to receive an economic benefit; or have over 50% ownership in the business of the person that violated the CAN-SPAM Act

Third-parties can be liable

if knew about the SPAM and receives or expects to receive an economic benefit; or

have over 50% ownership in the business of the person that violated the CAN-SPAM Act

CAN-SPAM Is Serious Criminal Liability: Fines and up to 5 years in prison for serious violations (like in furtherance of felony or 2nd offense) Civil Liability: $250 per violation/$2 million limit

Criminal Liability:

Fines and up to 5 years in prison for serious violations (like in furtherance of felony or 2nd offense)

Civil Liability:

$250 per violation/$2 million limit

CAN-SPAM Is Serious FTC regulates and collects fines and recommends prosecution ISPs can sue spammers for damages caused by spammers (but no suits for users).

FTC regulates and collects fines and recommends prosecution

ISPs can sue spammers for damages caused by spammers (but no suits for users).

Ohio Spam Law Ohio also regulates spamming (ORC § 2307.64; ORC § 2913.421) email okay if prior relationship or consent otherwise, need to give opt-out and full name and address

Ohio also regulates spamming (ORC § 2307.64; ORC § 2913.421)

email okay if prior relationship or consent

otherwise, need to give opt-out and full name and address

SPAM & Phishing MySpace sued Sanford Wallace, (aka “Spamford”) and filed another suit against spam legend, Scott Richter (U.S. Dist. Court in L.A.) Wallace is alleged to have created profiles, etc., that drew users to sites that appeared to be run by MySpace and then duped them into providing personal information – classic phishing. Also alleged to have comment spammed and sent other spam.

MySpace sued Sanford Wallace, (aka “Spamford”) and filed another suit against spam legend, Scott Richter (U.S. Dist. Court in L.A.)

Wallace is alleged to have created profiles, etc., that drew users to sites that appeared to be run by MySpace and then duped them into providing personal information – classic phishing.

Also alleged to have comment spammed and sent other spam.

Alternative Advertising Sponsoring events Car wrapping or mobile billboards Throwing handbills on street Others ** All or some of which may violate state, federal or city laws Sidewalk Chalking Flyers (by hand, on cars) Stickers on mirrors on bathrooms Street stunts Restroom, shopping cart and elevator billboards

Sponsoring events

Car wrapping or mobile billboards

Throwing handbills on street

Others

** All or some of which may violate state, federal or city laws

Sidewalk Chalking

Flyers (by hand, on cars)

Stickers on mirrors on bathrooms

Street stunts

Restroom, shopping cart and elevator billboards

Tip # 8: Remember the City Code 2006: D.C. fined Verizon $1,050 for chalk ads on sidewalks promoting yellow pages. Didn’t have a permit Violated D.C. code Dayton has permit requirements and restrictions – see www.municode.com Chapter 110 re: Advertising Other sections may also apply

2006: D.C. fined Verizon $1,050 for chalk ads on sidewalks promoting yellow pages.

Didn’t have a permit

Violated D.C. code

Dayton has permit requirements and restrictions – see www.municode.com

Chapter 110 re: Advertising

Other sections may also apply

QUESTIONS?

QUESTIONS?