United States: Five Questions To Ask Your Webmaster…And Your Lawyer

Last Updated: June 24 2014
Article by Debra L. Innocenti

A company's website is not the domain of just the marketing department. It is a cyber storefront and must be legally compliant. Here are five questions to ask your webmaster and business lawyer.

1. Do we have a website agreement?

At a minimum, your website agreement should cover copyright, fair use, terms of sale, privacy, disclaimers, and limitations of liability. Website agreements also can compel arbitration for disputes, prohibit deep-linking to the website's content (discussed in No. 5 below), and contain reasonable waivers of rights. Businesses may want to avoid overtly-aggressive waivers. General Mills was subject to a firestorm of controversy when it added to its legal terms a requirement that "all disputes related to the purchase or use of any General Mills product or service ...be resolved through binding arbitration," the acceptance was deemed to occur by "using our websites, joining our sites as a member, joining our online community, subscribing to our email newsletters, downloading or printing a digital coupon, entering a sweepstakes or contest, redeeming a promotional offer, or otherwise participating in any other General Mills offering." After the negative press coverage, General Mills removed the provision.

2. Is it enforceable?

To be enforceable, a website agreement must be conspicuous; merely posting it through a link or burying it in small print does not suffice. Best practice is to require some affirmative act of assent, such as requiring the user to click-through the agreement to access website content. When terms of use are modified, new notice is required.

3. Are we violating any copyrights or trademarks?

If your website sells products or services of others, you will need express permission to use the trademarks (any word, symbol, or logo identifying those products or services).

Likewise, you cannot use another's text, art, video, photos or music on your website unless you created it, you obtain permission to use the way that you are using it, or the copyright license allows you to use it that way. Attribution alone is not enough. Do not assume "stock photos" are safe. These photos are usually copyrighted, and library owners have been active in recent years policing their copyrights through spiders or "bots" crawling the internet for the stolen images.

Under the Digital Millennium Copyright Act, a person whose copyright has been infringed can ask an online host to take down the offending website. Online hosts must promptly remove or disable access to content when notified of alleged illegality, and you will be exposed to the costs of rectifying the violation and reposting your website.

You will also want to clarify with your webmaster who owns the content on your website. If relationships sour, you want to prevent a web designer from claiming that she owns and controls the text and images that she created for your site. The agreement should be in writing and signed.

4. Are we using infringing keyword advertising?

What you can't see can still hurt you. AdWords are the 2.0 of metadata. Initially, search engines relied on metatags or metadata embedded in the code of webpages to find relevant links for a user's search. Metatags were easily abused. A competitor could embed the trademarked name of a competing business or product in its metadata to cause its website to appear in search results when a user searched for that name. As search engines evolved, search engines began to sell keywords. In 2007, 1-800-Contacts sued Lens.com for trademark infringement because Lens.com purchased AdWords (Google's keyword advertising) that included "1-800 contact lenses," "1800 contact lenses," "800 contact lenses," among many others. Lens.com ultimately prevailed, but the fight lasted over six years. The take-away is that keyword lawsuits are expensive, and the buyer should beware.

5. Are we using impermissible linking?

A link is a coded word or image that when clicked on takes the user to another webpage. Usually––but not always––you do not need permission to link to another website. Some commercial websites prohibit "deep linking" in their website agreements. A deep link is a link that bypasses a website's home page—where page hits are measured and where most sponsor ads are placed. For instance, Amazon.com welcomes deep linking, but National Public Radio does not. Ticketmaster sued Microsoft for deep-linking to Ticketmaster's site. Best practice is to obtain permission, usually in the form of a linking agreement, which is also recommended for image links (where a trademarked image is coded as the link), framed links (a window embedded in a webpage that captures a portion of another website), and inlining (or IMG) links (links that direct the user to only a portion of another webpage, usually an image).

Correctly used, a website can enhance a business's brand. But an unconsidered approach can open the door to lawsuits and a damaged reputation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Debra L. Innocenti
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