Legal Issues with Websites and
Social Media

December 3, 2013
Louise Leduc Kennedy
West Hill Technology Counsel | p 978-33...
How would you describe your website?
Brochureware: simply promotes your company’s
products or services;
II. Blog: a platfo...
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. S...
Asserting IP Rights in your Brand Elements
In what brand elements has your business invested:
• money?
• time?
• effort?
W...
Brand Protection Strategy
Identify and protect key brand elements:
• Company Name: ™ or ®

• Company Logo: ™ or ®
• Compan...
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:
 cl...
Quick Fix
1. Delete images you obtained from Google Images or
otherwise copied from the web and replace with
images licens...
Respecting Privacy Rights
Privacy Strategy – Part 1
Understand that you have privacy obligations with respect to:
1. Business Data – employee, custo...
Privacy Strategy – Part 2
Understand your obligations:
a. Under 201 CMR 17 (Standards For The Protection of Personal
Infor...
Cautionary Tale
Example FAQ: Does your company share
customer information with others?
NO, NO, NO, NO, NO! We promise to r...
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 h...
Quick Fix (for Google Analytics users)
http://www.google.com/analytics/terms/us.html
You must post a Privacy Policy and th...
Providing Proper Disclaimers

Under the Federal Trade Commission Act:
• Advertising must be truthful and nondeceptive;
• A...
Selected Industries with Disclaimer
Requirements
–
–
–
–
–
–
–
–
–
–
–
–

Alcohol
Appliances
Automobiles
Clothing and Text...
FTC Guidelines Concerning the Use of
Testimonials and Endorsements:
• Consumer endorsements must reflect typical
experienc...
Dot Com Disclosures: How to make Effective
Disclosures in Digital Advertising
To make a disclosure clear and conspicuous:
...
Bottom Line

My company is worth what?
$$$ Strategy
Create Terms of Use for your business website that:
1.
2.
3.
4.
5.
6.

Assert ownership of your brand element...
Current Thinking About “Browsewrap”
If your site has any amount of interactivity, at
the point of interaction include: (1)...
Not-so-quick, but important, fix
Prepare for a graceful (and lucrative) exit by treating your
website and online presence ...
Legal Issues With Websites and Social Media
Legal Issues With Websites and Social Media
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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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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 llkennedy@westhillcounsel.com http://www.westhillcounsel.com/ © 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 westhillcounsel.com. 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 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).
  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) 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.
  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

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