LAW OFFICESHOWE & HUTTON, LTD.ST. LOUIS OFFICE: 20 NORTH WACKER DRIVE WASHINGTON, DC OFFICE:1421 BUCKHU R ST CO UR T CHICAGO, ILLINOIS 60606-9833 1901 PENNSYLVANIA AVENUE, N.W.B ALLW IN, M IS SO UR I 63021 TELEPHONE (312) 263–3001 SU ITE 1007TE LEP HO NE (636) 256-3351 FAX (312) 372–6685 W ASH ING TON, DC 20006FAX (636) 256-3727__________TELEPHONE (202) 466-7252FAX (202) email@example.comWhat Does It All Mean? Web 2.0 Legal IssuesPart 2 of a 2 Part SeriesBy: Barbara F. Dunn, Esq.Welcome to Web 2.0 – the bigger, better and more interactive side of the Internet.With the capability of webcasting, virtual meetings and other content delivery systems,does the organization face an increased exposure to liability as a result of these features?In our first part of this series, we explored the legal concerns with user generatedcontent such as social networking, blogs and wikis. In this second part of our series, wewill explore applications which provide enhanced delivery of content for meetings,conventions and other gatherings.Recording and Audio Synching SessionsMany organizations are audio and video recording presentations andperformances from their meetings and events so that they can be posted online for othersto view. While this Web 2.0 application can be tremendously useful, organizations whichwant to use this application must ensure they are doing so properly.First, consent should be obtained from the speakers and performers for therecording of the sessions. The consent must set forth the proposed use of the recordingssuch as display on the organization’s web site. The consent should also include astatement that the organization has the right to distribute any of the speaker’s handouts inthe same format and to use the speaker’s photograph.Second, if the organization’s web site allows for listeners of the presentation orperformance to submit a review, the organization should ensure that those posting areview do so in an appropriate and truthful manner. They should also be advised that theorganization reserves the right to remove any inappropriate reviews. The speaker shouldalso be made aware that listeners can post reviews so that the speaker is fully aware of
the application. Finally, readers of the site should be made aware that the opinionsexpressed are those of the individual and not those of the organization.Virtual MeetingsIn order to supplement the one or two meetings organizations do each year, manyorganizations are turning to a year-round, virtual meeting online. These onlinecommunities can offer attendees access to speakers, performers, conference materials,and other valuable networking features.The concern with such technology is that the organization may not have therequisite permission to post materials online. The organization should therefore receive awritten consent from anyone whose presentation and/or materials will be part of thevirtual meeting. Further, users of the virtual meeting should agree that they will not copyor distribute the materials in violation of the author’s copyright.E-marketingWhile electronic marketing is not a new Web 2.0 application, emails continue toget more sophisticated in terms of their capabilities and reach. Organizations should befamiliar with the federal law entitled, “Controlling the Assault of Non-SolicitedPornography and Marketing Act of 2003,” otherwise known as the “CAN-SPAM” law.While the purpose of this law was to combat “junk emails”, it has the effect of requiringall organizations to comply with its terms when it comes to electronic marketing.CAN-SPAM requires that all commercial e-mail (defined as “any electronic mailmessage the primary purpose of which is the commercial advertisement or promotion of acommercial product or service”) comply with certain requirements. Exempted from thecommercial e-mail definition are “transactional or relationship messages” whichprimarily “facilitate, complete, or confirm a commercial transaction that the recipient haspreviously agreed to enter into with the sender.” For example, if the individual hasregistered for a conference, the organization may send that person an email confirmingthat transaction.Under CAN-SPAM, all commercial e-mail must be sent from a functioning e-mailthat the recipient can use to opt-out by requesting that no further messages be sent. Thesender of the message is given 10 business days to honor such opt-out requests, at whichpoint sending any additional commercial e-mail represents a violation of the CAN-SPAM.CAN-SPAM also requires that each commercial e-mail message contain “clearand conspicuous identification that the message is an advertisement or solicitation,”although the manner in which this identification must appear is not specified. Suchmessages must also contain the postal address of the sender.
One recommendation that we have made to clients in this area is to focus onwhether the “primary purpose” of the communication is an advertisement. If it is not, thecorrespondence falls outside the scope of CAN-SPAM. One way to ensure the “primarypurpose” is not an advertisement is to include in the e-mail substantive updates about theorganization and its mission and work and then make the advertisement of a book orprogram a secondary, supplemental purpose.ConclusionThe discussion of the various Web 2.0 applications leads us back to the age oldprinciple that we should look before we leap. Organizations which want to add newfeatures to its web site or services to its members should first fully investigate the legaland business implications of such activity and only proceed when it’s clear that no greatconcern for liability exists. Such a process should maximize the value of the Web 2.0application to the membership and minimize the potential for liability to the organization.Barbara Dunn is an attorney and partner with Howe & Hutton, Ltd, a law firm whichspecializes in the representation of groups in the meetings, travel and hospitalityindustry. She can be contacted at firstname.lastname@example.org.