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. SPEAKER: 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.

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.

3. 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.

4. Three Key Elements
Terms of Use
Privacy Policy
Copyright Statement

5. 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

6. 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?

7. Brand Protection Strategy
Identify and protect key brand elements:
• Company Name: ™ or ®
• Company Logo: ™ or ®
• Company Website: ©
• Key Content: ©

8. Quick Fix
NOT: © 2011 westhillcounsel.com.
RATHER: © 2013 West Hill Technology
Counsel, Inc. All rights reserved.

9. Sourcing and protecting your content
But I found it on the web . . .

10. 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

11. 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).

12. Respecting Privacy Rights

13. 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

14. 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!

15. 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.

16. Understanding Your Technology Agreements
But who really reads these?

17. 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.

18. 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.

19. 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.

20. Selected Industries with Disclaimer
Requirements
–
–
–
–
–
–
–
–
–
–
–
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Alcohol
Appliances
Automobiles
Clothing and Textiles
Finance
Funerals
Franchises, Business Opportunities, and Investments
Human Resources
Jewelry
Non-Profits
Real Estate and Mortgages
Tobacco

21. 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.

22. 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.

23. Bottom Line
My company is worth what?

24. $$$ 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

25. 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.

26. 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