Seven Habits of Highly Effective Websites

Best Practices in Third Party IP Protection:

By Robert L. Sallander, Jr. & Spencer S. Adams

The World Wide Web, though relatively new in the scheme of things, has entrenched itself in modern society. The Web and its constituent member Websites first latched onto private users, and have now risen to new levels as the business sector has determined that business Websites are important to commercial success. While the emergence of Websites for businesses has increased the ability of those businesses to contact their consumer bases and otherwise facilitate business, as in any business venture, liability lurks in the shadow of all things new. This briefing paper is intended to serve as a basic guide for limiting liability during the creation and maintenance of a business’s Website.

During the inception, creation and maintenance phases of a business Website, an eye needs to be kept on several aspects of the site in order to protect the business from unnecessary liability risks. Among the different forms of exposure a Website operator can experience are copyright, trademark and patent infringement, unfair competition, antitrust violations, defamation, and vicarious liability. This paper identifies seven of the common areas that businesses should make a habit of watching to guard against vulnerability to liability based on their Websites. The seven areas discussed in this briefing paper are as follows:
  • Intellectual Property Infringement
  • Intellectual Property Protection
  • Advertising Concerns
  • Privacy Concerns
  • Framing and Linking
  • Terms and Conditions
  • Backing Up and Archiving

Intellectual Property Infringement

One of the easiest ways for a business to find liability knocking on its door is for the Website it “creates” to infringe on other creator’s intellectual property rights, whether those rights involve trademarks, copyrights, or patents.

Trademark Infringement

Trademark law applies just as strictly online as it does offline. A trademark, as defined by the Federal Lanham Act, is any word, name, symbol, or device, or any combination thereof, used or intended to be used in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. See 15 USC 1125. In short, a trademark is a brand name and/or design that is applied to products or used in connection with services.

Generally speaking, you cannot use someone else’s trademark (logo, slogan, jingle, etc.) without that person’s permission. Unauthorized use of a trademarked item constitutes infringement thereof. Use of a mark that is not the same as the trademark, but is similar to the trademark and is likely to cause confusion, mistake, or deceive as to the association of the user with the trademark owner, is also an infringement of the trademark owner’s rights. Basically speaking, you can’t try and get around trademark infringement by trying to come as close to the trademark as possible without exactly copying it.

In two classic trademark cases, where the analysis boils down to whether there is a likelihood of confusion, bulletin board operators were found liable for displaying photos and distributing copies of games, both of which included the plaintiff’s trademarks. See Playboy v. Frena and Sega v. MAPHIA. Trademark claims often accompany copyright infringement actions, as was the case in both of these actions.

One of the hottest commodities of the past five years has been the domain name. A party that can obtain a prime domain name, one affiliated with the party’s name or trademark, has an obvious benefit in helping lure customers to its site. Due to the attractiveness of good domain names, entrepreneurs quickly began registering famous and trademarked domain names, for no other purpose than to later sell the rights to that name to the owner of the trademark at a high price.

In order to counter this so called “cybersquatting,” and to supplement the general protections held by trademark owners, Congress passed the Anticybersquatting Consumer Protection Act (ACPA) in 1999. 15 USC s 1125(d) et seq. The ACPA seeks to combat domain name piracy by allowing a trademark owner to bring civil actions against those who register, traffic in or use a domain name with a bad-faith intent to profit from it when the domain name is a trademark, or is confusingly similar to a trademark. The Federal Second Circuit court held in a recent case, Virtual Works, Inc. v. Volkswagen AG., that parties who register intuitive domain names should relinquish those domains to companies who have trademark rights in the domain name. The holding in the case was based on the ACPA.

Congress passed the Federal Trademark Dilution Act in 1995 to combat the use of marks that, though not necessarily infringing on the trademark at issue, have detrimental affects to famous marks. In order for a dilution action to succeed, the plaintiff must show that its mark is famous (i.e. Kodak, Coke, Nike, Microsoft) and that the use of the defendant’s mark will lessen the capacity of the mark to identify or distinguish the plaintiff’s goods or services. Congress essentially gave large businesses another weapon to combat trademark infringement, perhaps expanding the trademark protection for famous marks. The lesson to be learned here is if the mark is famous, you need to be even more careful about infringing it.

The following cases are recent examples of the types of trademark infringement actions being brought against Websites:

Paine Webber, Inc. v. Fortuny, (E.D. Va. 1999): The court granted a preliminary injunction against a defendant who had linked a Website domain name similar to plaintiff’s domain name to a pornographic site.

Playboy Enters., Inc. v. Universal Tel-A-Talk, Defendant’s use of Playboy’s marks to advertise defendant’s line of paraphernalia was held to have infringed and diluted Playboy’s trademarks.

Oakland’s Park Plaza Hotel has also been found to be subject to personal jurisdiction in Arizona for a suit alleging infringement of a service mark because of its interactive Website accessed by Arizona residents.

In another case, a Website operator was held liable by a court to pay Playboy $3 million plus attorneys fees for using “playboy” and “playmate” in the site’s domain names and meta tags.

Copyright Infringement

Copyright protection arises when an original work of authorship is “fixed in any tangible medium of expression, known now or later developed, from which they can be perceived, reproduced or otherwise communicated, either directly or with the aid of a machine or device.” 17 USC § 102. The owner of a copyright has exclusive statutory rights of reproduction, distribution, public performance, public display, and preparation of derivative works based on the original. The violation of any of these rights constitutes copyright infringement. Copyright infringement can come via direct, vicarious or contributory infringement.

To establish direct infringement, the copyright owner must prove (i) ownership of a valid copyright and (ii) copying of the work by the defendant. Copying may be either shown by direct proof or inferred from the circumstances by showing (i) access by the defendant to the protected work and (ii) substantial similarity between the defendant’s work and the protected work.

In Sega Enterprises, Ltd. v. MAPHIA, the court granted a preliminary injunction against bulletin board operator Maphia who knowingly allowed others to upload and download Sega games and expressly solicited the upload of the games. 948 F.Supp. 923 (N.D. Cal. 1996).

In Playboy v. Frena, another case dealing with direct copyright infringement, a bulletin board operator, who was allegedly ignorant of the ongoing copyright infringement by board users, was held liable. The court noted that when a defendant supplies a product containing unauthorized copies of a copyrighted work, it does not matter that defendant claims he did not make the copies himself. 839 F.Supp. 1552 (M.D. Fla. 1993).

Under vicarious liability, the plaintiff needs to show that the defendant has the right and ability to supervise the person who infringed on the copyright, and that the defendant has an obvious and direct interest in exploiting copyrighted material.

In addition, copyright infringement liability exists if the defendant engages in personal conduct that encourages or assists the infringement. This type of infringement is known as contributory infringement. The plaintiff may also prove contributory infringement by proving that the defendant provided the means to infringe and knew, or should have known, of the intent to infringe by the direct infringer.

In the case of Sony Music Corp. v. Universal Studios, the United States Supreme Court did not find contributory infringement by Sony due to its VTR technology (old time VCRs), due to the fact that the VTRs had at least one substantial, non-infringing use.

The most recent Internet case dealing with contributory copyright infringement is A&M Records, Inc. v. Napster, Inc. 2001 U.S. App. LEXIS 5446. In May of 1999, the founder of Napster, Inc. created an online music service known as peer-to-peer file sharing. This technology allows users to trade music files over the Internet found on other users’ computers. Though the service began just two years ago, today’s user base for Napster numbers more than 60 million. The transmission of the music files by the users of the services constitutes direct copyright infringement. A&M represents multiple record labels suing Napster based on contributory infringement of their copyrights in the songs transferred between the users of Napster’s service. The 9th Circuit Court of Appeals ruled in February of 2001 that Napster knew its users where violating copyright laws via its services. The most damaging piece of evidence in the case was an internal memo that mentioned the need for the company to remain ignorant of the real names of the users because “they are exchanging pirated music.” 2001 U.S. App. LEXIS 5446 at n. 5. Though Napster still contends it will prevail in the Supreme Court, Website owners should realize that knowingly assisting others to violate copyright laws is extremely risky.

Patent Infringement

Patent law protects against infringement from direct and contributory infringement, as well as protecting against parties who induce others to infringe. In order to directly infringe on another’s patent, a Website operator must, without authority, make, use, offer to sell or sell the patented invention. Since such business staples as software and business models are patentable, site operators need to be alert for possible infringement issues when posting content of a similar nature. In addition to direct infringement, a site operator needs to be wary of contributory infringement of patent rights. Be careful when offering to sell or selling any component of a patented invention, or offering to sell or selling material or apparatus used in a patented process, and never do so when you have knowledge that the items your site sells or otherwise delivers are being used to infringe patent rights. Inducement to infringe involves defendants who actively induce others to directly infringe a patent.

Intellectual Property Infringement Best Practices
  • Make sure that no trademarks are used without the owner’s permission. Examine all logos, slogans, etc. to make sure they aren’t taken directly from or based on another’s trademark without permission.
  • Spell out ownership in the site development contract.
  • Obtain hold harmless/indemnity agreement and insurance from your web developer.
  • Assess all content on the site, know where it comes from, and get permission to use anyone else’s content.
  • This includes pictures, music, text, or any other copyrightable work.
  • When in doubt, get the owner’s permission.

Intellectual Property Protection

Just as it is important for a business to watch out for its own infringing actions, a business needs to carefully protect its intellectual property rights. The typical intellectual property rights to be protected are trademarks and copyrights (including one for the Website itself), and some more technical Websites may want to look at patenting original software programs or business models used as part of the Website. Amazon sued a rival bookstore for infringing its patent on 1-Click technology, which allows users to enter information once, then place future orders without having to re-enter the information. Amazon.com, Inc. v. Barnesandnoble.com, Inc., 73 F. Supp. 2d 500 (W.D. Wa. 1999).

The first item of intellectual property you should look to protect, prior to commencing on the journey through the Website to find what intellectual property should be protected, is the Website itself. Carefully review and revise any contractual language that delivers the rights of ownership in the Website itself to the web developer. If you have it done in-house, have a person specifically designated to do the designing as an official function, and document that designation. Additionally, make sure the employee signs an assignment of copyright to the employer. Many believe that a business’s Website should belong to the business. Whether morally right or not, the ownership of the Website, if you don’t take the necessary precautions, may belong to the web developer you paid several thousand dollars to create “your” site.

After ensuring that your site is in fact yours, the next item of business is to go through the site as created (and in the future review all additions to the site) and determine what content on the site constitutes either copyright, trademark or patent-protected property. You should place all the proper notices next to the protected content and make sure you have registered your intellectual property with the appropriate state and federal agencies.

Intellectual Property Protection Best Practices
  • Provide for copyright ownership of your initial Website, and all subsequent versions thereof. Do so expressly through contractual language and copyright assignments.
  • Include proper notices next to the trademarked and copyrighted content.
  • Register all your intellectual property (including the Website itself) with the appropriate state and federal agencies.
  • Include appropriate terms and conditions limiting use of site.

Advertising Concerns

One of the principle reasons businesses elect to create a presence for themselves on the web is to advertise. A reason other business create web presences is to earn advertising dollars from parties desiring to place ads on the site. While these two reasons present different scenarios, similar items in both merit close attention. Federal and state fair advertising laws may curse you with liability both from your own representations of products and services you sell and from advertisements you allow to run on your Website.

In addition to advertising laws, advertising practices of businesses involved in the Internet may bring lawsuits when they affect other areas of the law. These areas include defamation, piracy and unfair competition, misappropriation of advertising ideas, as well as typical intellectual property concerns.

Innovator, a competitor of Lexis-Nexis, bought rights to place banner advertisements keyed to Lexis-Nexis’ trademarks on search engines. When site users searched for Lexis-Nexis trademark words, a banner ad for Innovator would appear above the search results. Lexis-Nexis brought suit against Innovator for trademark infringement based on the advertising Innovator had purchased. This ongoing litigation demonstrates that use of another’s trademark in the advertising arena is sure to bring about at least a lengthy, costly trial, if not liability as well. Reed Elsevier, Inc. v. Innovator Corp., 105 F.Supp.2d 816 (S.D. Ohio 2000).

Advertising Concerns Best Practices
  • Examine or create guidelines for accepting advertisements on the site, particularly banner or other ads which link to the advertiser’s site.
  • Ensure that your guidelines adhere to federal and state fair advertising laws, especially when dealing with minors.
  • Review your order form for accepting advertisements on your Website, checking for appropriate indemnifications, representations and warranties.
  • Be careful that advertisements accepted on your site, and advertisements placed by your business on other sites, do not infringe on other’s intellectual property rights or otherwise injure third parties.

Privacy Concerns

One of the concerns people have with the use of the Internet is privacy. People don’t want to feel either as though someone is invading their own privacy while surfing, emailing, or engaging in any number of other legitimate Internet activities, or that sites they visit will use any information given to them by the user in an abusive manner. These two basic concerns, the invasion of privacy and user privacy, are important for Websites to be considerate of and careful with.

Invasion of Privacy

Lawsuits are generally based on two general sources of law: statutory law, which is the creation of legislatures, and common law, which evolves from common practices and standards from early times. The United States has few statutory laws dealing directly with the invasion of privacy, and fewer still that also deal with such invasion online. Notwithstanding the scarcity of enacted legislation regulating invasions of privacy, a site owner should check with local counsel to determine whether any local statutes or federal laws will impact the Website.

One reason invasion of privacy is not dealt with often at the legislative level is because the common law deals with it extensively. There are four general types of common law privacy claims that may arise from either statements or other content found on a Website: Intrusion, Appropriation, Private Facts, and False Light.

Unreasonable Intrusion upon Seclusion

Unreasonable intrusion upon seclusion is an invasion by a third party into an individual’s privacy. The plaintiff must prove that at the time the intrusion took place, there was either a legitimate expectation of solitude or the plaintiff was in a place he could expect to be alone.

While this tort certainly applies to areas such as a person’s home, a person’s activities on the Internet can also be protected thereby. The commentary to a prominent treatise on the law of torts notes that “private concerns” such as a person’s “private and personal email” are covered by the intrusion claim. The commentary notes that even if the Internet is considered a public place, the intrusion privacy tort may still apply: “Even in a public place . . . there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be an invasion of privacy when there is intrusion upon these matters.” R.2d Torts 562F cmt. B. (1977).

Appropriation of Another’s Name or Likeness

This tort involves taking a person’s name, picture, photograph, or likeness and using it for commercial gain without permission. A careful inspection of Website content should include review of the use of names, pictures and descriptions of persons to prevent appropriation.

In a recent case involving a Website’s violation of this tort, Pamela Anderson Lee and Bret Michaels had videotaped themselves at home engaging in sexual activities. When the Website operator Internet Entertainment Group Inc. obtained a copy of the tape and got ready to post still frames from it on the Internet, Michaels brought suit and won a preliminary injunction, based in part on the tort of appropriation. The court held that Michael’s appropriation claims arising from IEG’s use of Michael’s name and image, as well as that of his partner, Lee, were valid. Michaels v. Internet Entertainment Group Inc., 5 F.Supp. 2d 823 (C.D.Cal. 1998).

Unreasonable Publicity Given to Another’s Private Life

Generally speaking, the private facts tort is committed when there is publication of private information about an individual. Speaking more technically, prior to a holding of private facts, there must be publicity to private facts about an individual, the revelation of this material must be offensive to a reasonable person, and the material revealed must not be of legitimate public concern.

Publicity Unreasonably Placing Another Person in a False Light

The fourth type of common law invasion of privacy tort is false light. Basically, this occurs when a Website posts material that puts an individual in a false light. The three elements of this claim are i) publication of the material must put an individual in a false light, ii) the false light must be considered highly offensive to a reasonable person, and iii) the material was published negligently, with knowledge of its falsity, or with reckless disregard for the truth.

Invasion of Privacy Best Practices
  • Preview site content to watch out for material that deals with invasions on people’s legitimate expectation of privacy. Be very careful when posting items that could only be uncovered in private arenas, such as within the walls of a home. Even Internet communications such as email may have this expectation of privacy.
  • Carefully inspect all Website content, specifically including review of the use of names, pictures and descriptions of persons to prevent appropriation.
  • If private information on a Website about an individual is true, but nonetheless casts someone in a very bad light and there is not a very strong public need for the facts, be careful and have your local counsel review the content prior to posting it.
  • Inspect all posted material to ensure that it does not put an individual in false light: be on the lookout for substantially false information, highly offensive information, and never post anything suspected to be false.
  • Be careful with personal comments about individuals and the use of names, pictures and voice recordings.

User Privacy

As the use of the Internet by consumers has dramatically risen, concern over the privacy and security of personal information on the Internet has also increased. Many Websites obtain large quantities of private information, either by requiring the user to input the information directly or by accessing it via cookie technology. Cookie technology allows the site to monitor the pages viewed and services utilized by users on the site. Exactly what information your site gathers and how such information is used should be carefully dealt with. Several cases deal with deceptive practices of Websites over their collection of personal information.

FTC v. ReverseAuction.com: The case settled after charges alleged that ReverseAuction violated consumer privacy by collecting personally identifying information for unauthorized purposes.

Illinois v. Clearstation: The State’s Attorney filed suit alleging that the site misrepresented its cookie policy and compromised consumer privacy rights.

Another concern to be dealt with in assessing user privacy on a Website involves when a Website decides to give out information. Official requests for information such as subpoenas are strictly regulated by the Electronic Communications Privacy Act. See 18 USC § 2701. Website privacy policies should pay careful attention to and be in full compliance with this and other federal and state laws dealing with compelled disclosures of user information.

The vast amount of information on the Internet can be an asset to your business. However, liability concerns dictate a careful review to ensure that information collection policies comply with applicable federal privacy statutes and Federal Trade Commission regulations such as the recently passed Online Child Privacy Protection Act. It applies to the online collection of personal information from children under thirteen. The new rules spell out what a Website operator must include in a privacy policy, when and how to seek verifiable consent from a parent and what responsibilities an operator has to protect children’s privacy and safety online. See 16 C.F.R. Part 312.

A good example of how not to protect online user privacy was recently presented by Geocities. See In re Geocities (1999). The F.T.C. alleged that GeoCities had engaged in deceptive practices regarding its collection and use of personally identifiable information from GeoCities users. The F.T.C. complained of two basic types of deception. First, GeoCities allegedly misrepresented the way it used information collected from its subscribers. GeoCities allegedly sold the information, contrary to prior representations. Second, GeoCities allegedly misrepresented its sponsorship of children’s web services. GeoCities used a third party to collect information in connection with a GeoCities kid site, contrary to GeoCities’ representation. The final consent order in the case contains valuable information about what the F.T.C. would like to see in the form of privacy-friendly conduct on the Internet.

In re GeoCities isn’t a lone case. In FTC v. Monarch Services, the FTC reached settlements with three companies that allegedly violated the Children’s Online Privacy Act. Whenever your site either will attract minors, or if you know your site actually has minors who use it, you need to be very careful of user privacy.

Two requirements from the In re GeoCities Settlement Order, generally applicable to business on the Internet, have been included below as the first two best practices.

User Privacy Best Practices
  • Refrain from collecting personally identifiable information from any child (12 and under) unless you have express, verified parental permission.
  • Provide clear and prominent notice about the personally identifiable information you collect from your subscribers. Such notice should include:
    • What information is being collected;
    • The intended uses of the information collected;
    • Third parties to whom the information will be disclosed; and
    • The subscriber’s ability to access, modify and remove the information.
  • Review Federal and state privacy statutes and regulations with local counsel to ensure conformity.
  • Review your information disclosure policy regarding requests for information such as subpoenas, and make sure the policy complies with the Electronic Communications Privacy Act.

Framing and Linking

The Internet uses, as one of its most basic elements, hypertext-linking technology. Commonly referred to as links, this technology allows a person to click on a specific link, which then provides seamless transition from the current web page to a separate web page, without the user having to type in a new URL address at the top of the browser window. Recently, copyright and trademark infringement issues have arisen in the context of linking. However, the problem is generally only with links that go from one Website to the content deep within another Website, bypassing that site’s home page (and accompanying terms and conditions). This practice, known as deep linking, has been the subject of several recent lawsuits.

In Ticketmaster v. Tickets.com, a suit was brought by Ticketmaster over alleged deep links into the Ticketmaster site. In another recent case, Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., a preliminary injunction was granted against a Website operator who provided links to infringing copies of the plaintiff’s copyrighted materials.

Framing is another Internet Technology that may bring liability to a Website. Framing technology pulls a web page in from another site and places it within the template of the framing site, thereby displaying the contents of more than one Web page on the screen at one time. Some cases have found the framing site liable for misappropriation and copyright infringement where the framing site has covered up the advertisements and links of the framed site’s page, utilizing only the content.

In Washington Post v. TotalNEWS, Inc., multiple publishers whose web pages were presented in frames on defendant’s page alleged that TotalNEWS’s use of “frames” to display the news content was “pirating copyrighted material.” The settlement required TotalNEWS to link only in ways not framing the content in TotalNEWS’s display.

Framing and Linking Best Practices
  • The linking or framing Web site should seek permission from the linked-to or framed Web site.
  • Generally speaking, the “terms and conditions” on the linked-to or framed Web site will explain how to do this.
  • Linking: In general, a link from one site to another site’s home page is acceptable, as long as no affiliation is implied.
    • Do not use another party’s trademarks as the graphic associated with the link. Place disclaimers near the link noting that the user will be going outside of your Website to another Website.
    • Avoid portraying the linked-to Web site in an unfavorable light.
  • Deep Linking: Be cautious of deep linking, particularly when done by one commercial site to another.
    • Make a practice of attempting to obtain permission for any deep link. If this is not possible, state close to the link that you are willing to remove the link at the linked-to page owner’s request.
    • Make sure your web developer follows the terms and conditions found on linked-to pages for linking and framing.
    • Deep linking by a commercial Web site without the permission of the linked-to Web site should be avoided.
    • Deep linking by a commercial Web site to a non-commercial Web site (federal agency or state government) is probably acceptable. But be careful about linking to not-for-profit sites without permission.
  • Framing: Be extremely careful when framing in another site’s content.
    • Always try to obtain permission before framing.
    • If you cannot obtain permission, be certain you do not delete or cover up any advertising or links the originating site had associated with the content, be sure to give proper attribution to the originating site, make sure it is clear what is being framed, and be prepared to remove the framing if so requested.

Terms and Conditions

One of the most important items you can put on your Website to guard against intellectual property infringement is a comprehensive set of terms and conditions, designed specifically for your business model and Website. Many factors go into determining what clauses to include and how comprehensive to make a Website’s terms and conditions. There are two general purposes behind terms and conditions. One is an attempt at creating a contract between the business and the site visitor, based upon which contract all use of the site will be governed. The second is to create an intimidating impression on the visitor due to the complexity, length, and severity of terms contained therein.

A properly drafted terms and conditions section will evaluate both the liability risks posed to the business by the site as well as the potential intellectual property theft invited by the mere presence of the site on the web. Generally speaking, the simpler the site is, the less complex the terms and conditions need to be. If a site incorporates more complex items, such as e-commerce, financial information and services, or chat or message boards, the terms and conditions should be more comprehensive, and a reading of the terms may be a prerequisite to site access. Terms to be included on most sites include a) Logo/intellectual property usage; b) Link placement; c) Nature of linking party; d) Non-disparagement agreement; e) Term & termination; f) Privacy; g) Consideration; h) Legal issues; and i) No endorsement stipulation.

Terms and Conditions Best Practices
  • Create terms and conditions that match your business model and Website complexity.
  • Clauses to be included on most Websites:
    • Logo/intellectual property usage;
    • Link placement;
    • Nature of linking party;
    • Non-disparagement agreement;
    • Term & termination;
    • Privacy;
    • Consideration;
    • Legal issues; and
    • No endorsement stipulation

Backup and Archive Procedures

As with any other business practice, the evolution and mutations of your Website may need to be documented. This will be most efficiently taken care of by implementing backing up and archiving procedures for making (or perhaps not making, as the situation may merit) electronic copies of the Website in its various stages of existence. Even an established Website will undergo numerous changes during the course of a week or month, and some of these changes may merit burning a copy of the site as it exists on that date onto a compact disc or other secure storage method. If you do have archived copies of your Website, when a lawsuit comes knocking at your door, you will have a record of what existed on your Website at the time the alleged problem occurred.

Backup & Archive Procedures Best Practices
  • Prepare an archiving procedure with local counsel, taking into account:
    • How often and much the site content changes
    • Confidence level from due diligence
    • Statute of limitations
  • Implement the archiving procedure.

Conclusion

The addition of a Website represents both an advantageous move for and a risk of liability to your business. In order to limit your liability while taking advantage of the benefits, certain practices should be followed to guard against liability-attracting problems. The following list of best practices, a summary of those discussed in more detail above, represents an overview of the most obvious liability flags Websites ought to trigger in the minds of their owners. Due to the complex nature of the legal world in cyberspace, a business should consult with counsel prior to making a complete assessment of liability risks regarding its Website.

Website Best Practices

  • Intellectual Property Infringement
    • Make sure that no trademarks are used without the owner’s permission. Examine all logos, slogans, etc. to make sure they aren’t taken directly from or based on another’s trademark without permission.
    • Spell out ownership in the site development contract.
    • Obtain hold harmless/indemnity agreement and insurance from your web developer.
    • Assess all content on the site, know where it comes from, and get permission to use anyone else’s content.
    • This includes pictures, music, text, or any other copyrightable work.
    • When in doubt, get the owner’s permission.

  • Intellectual Property Protection
    • Provide for copyright ownership of your initial Website, and all subsequent versions thereof. Do so expressly through contractual language and copyright assignments.
    • Include proper notices next to the trademarked and copyrighted content.
    • Register all your intellectual property (including the Website itself) with the appropriate state and federal agencies.
    • Include appropriate terms and conditions limiting use of site.

  • Advertising Concerns
    • Examine or create guidelines for accepting advertisements on the site, particularly banner or other ads which link to the advertiser’s site.
    • Ensure that your guidelines adhere to federal and state fair advertising laws, especially when dealing with minors.
    • Review your order form for accepting advertisements on your Website, checking for appropriate indemnifications, representations and warranties.
    • Be careful that advertisements accepted on your site, and advertisements placed by your business on other sites, do not infringe on other’s intellectual property rights or otherwise injure third parties.

  • Privacy Concerns
    • Invasion of Privacy
      • Preview site content to watch out for material that deals with invasions on people’s legitimate expectation of privacy. Be very careful when posting items that could only be uncovered in private arenas, such as within the walls of a home. Even Internet communications such as email may have this expectation of privacy.
      • Carefully inspect all Website content, specifically including review of the use of names, pictures and descriptions of persons to prevent appropriation.
      • If private information on a Website about an individual is true, but nonetheless casts someone in a very bad light and there is not a very strong public need for the facts, be careful and have your local counsel review the content prior to posting it.
      • Inspect all posted material to ensure that it does not put an individual in false light: be on the lookout for substantially false information, highly offensive information, and never post anything suspected to be false.
      • Be careful with personal comments about individuals and the use of names, pictures and voice recordings.

    • User Privacy
      • Refrain from collecting personally identifiable information from any child (12 and under) unless you have express, verified parental permission.
      • Provide clear and prominent notice about the personally identifiable information you collect from your subscribers. Such notice should include:
        • What information is being collected;
        • The intended uses of the information collected;
        • Third parties to whom the information will be disclosed; and
        • The subscriber’s ability to access, modify and remove the information.
      • Review Federal and state privacy statutes and regulations with local counsel to ensure conformity.
      • Review your information disclosure policy regarding requests for information such as subpoenas, and make sure the policy complies with the Electronic Communications Privacy Act.

  • Framing and Linking
    • The linking or framing Web site should seek permission from the linked-to or framed Web site.
    • Generally speaking, the “terms and conditions” on the linked-to or framed Web site will explain how to do this.
    • Linking: In general, a link from one site to another site’s home page is acceptable, as long as no affiliation is implied.
      • Do not use another party’s trademarks as the graphic associated with the link. Place disclaimers near the link noting that the user will be going outside of your Website to another Website.
      • Avoid portraying the linked-to Web site in an unfavorable light.
    • Deep Linking: Be cautious of deep linking, particularly when done by one commercial site to another.
      • Make a practice of attempting to obtain permission for any deep link. If this is not possible, state close to the link that you are willing to remove the link at the linked-to page owner’s request.
      • Make sure your web developer follows the terms and conditions found on linked-to pages for linking and framing.
      • Deep linking by a commercial Web site without the permission of the linked-to Web site should be avoided.
      • Deep linking by a commercial Web site to a non-commercial Web site (federal agency or state government) is probably acceptable. But be careful about linking to not-for-profit sites without permission.
    • Framing: Be extremely careful when framing in another site’s content.
      • Always try to obtain permission before framing.
      • If you cannot obtain permission, be certain you do not delete or cover up any advertising or links the originating site had associated with the content, be sure to give proper attribution to the originating site, make sure it is clear what is being framed, and be prepared to remove the framing if so requested.

  • Terms and Conditions
    • Create terms and conditions that match your business model and Website complexity.
    • Clauses to be included on most Websites:
      • Logo/intellectual property usage;
      • Link placement;
      • Nature of linking party;
      • Non-disparagement agreement;
      • Term & termination;
      • Privacy;
      • Consideration;
      • Legal issues; and
      • No endorsement stipulation

  • Backup and Archive Procedures
    • Prepare an archiving procedure with local counsel, taking into account:
      • How often and much the site content changes;
      • Confidence level from due diligence;
      • Statutes of limitation.
    • Implement the archiving procedure.