Legal Issues With Websites and Social Media


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If your business has an online presence — a website, a social media page — you need to know about possible legal issues, like privacy, copyrights and trademarks, CAN-SPAM compliance, and the fine print of your web analytics agreement. Learn some simple steps you can take to help reduce your legal risk and protect your online presence. This workshop will also address how to preserve (and enhance) the value of your website as part of a business exit strategy.


Louise Leduc Kennedy is a highly experienced business attorney and founder of West Hill Technology Counsel, a boutique business and technology law firm. She has extensive experience advising technology companies on strategic and commercial matters including: software commercialization, cloud computing, strategic alliances and all aspects of on-line business and contracting. Louise enjoys working with small and medium-sized entrepreneurial businesses -- particularly highly creative founders who are excited about their products and services and want to protect their investment of time and money.

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  • Your email provider, ISP – and federal and state governments – take your compliance with CAN-SPAM and privacy requirements seriously.
  • Legal Issues With Websites and Social Media

    1. 1. Legal Issues with Websites and Social Media December 3, 2013 Louise Leduc Kennedy West Hill Technology Counsel | p 978-338-4082 © 2013 West Hill Technology Counsel, Inc. All rights reserved.
    2. 2. How would you describe your website? 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. I.
    3. 3. Three Key Elements Terms of Use Privacy Policy Copyright Statement
    4. 4. 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
    5. 5. 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?
    6. 6. Brand Protection Strategy Identify and protect key brand elements: • Company Name: ™ or ® • Company Logo: ™ or ® • Company Website: © • Key Content: ©
    7. 7. Quick Fix NOT: © 2011 RATHER: © 2013 West Hill Technology Counsel, Inc. All rights reserved.
    8. 8. Sourcing and protecting your content But I found it on the web . . .
    9. 9. 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
    10. 10. 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; 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).
    11. 11. Respecting Privacy Rights
    12. 12. 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
    13. 13. 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!
    14. 14. 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.
    15. 15. Understanding Your Technology Agreements But who really reads these?
    16. 16. 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.
    17. 17. Quick Fix (for Google Analytics users) 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.
    18. 18. Providing Proper Disclaimers Under the Federal Trade Commission Act: • Advertising must be truthful and nondeceptive; • Advertisers must have evidence to back up their claims; and • Advertisements cannot be unfair.
    19. 19. 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
    20. 20. 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.
    21. 21. 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.
    22. 22. Bottom Line My company is worth what?
    23. 23. $$$ Strategy Create Terms of Use for your business website that: 1. 2. 3. 4. 5. 6. Assert ownership of your brand elements and other IP Disclaim warranties; limit damages Include content-relevant provisions (DMCA notice, industry and content-specific disclaimers) Choose a convenient, pro-business venue for litigation Demonstrate your credibility to other businesses Reflect the state of the law on “browsewrap” agreements
    24. 24. 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.
    25. 25. 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