It is easier than ever to create and maintain a website. However, there are many pitfalls and potential liabilities that quietly exist in cyberspace. Anyone publishing content online through a website should be aware of certain legal requirements, and some best practices, so problems aren’t inadvertently created.
Properly use third-party content
Using images, designs, videos, or text that you don’t own on your website can put you in hot water. Many people mistakenly believe that because content is made available online, anyone can copy or use that content for their own purposes. That is often not the case, however, and it is instead wise to assume all third-party materials are protected by copyright law and permission is needed to use those materials.
Copyright protection extends to creative and original work when it is fixed in a tangible medium, regardless of whether a copyright registration exists, and even without a copyright notice. Publishing content online doesn’t change a copyright owner’s rights. There are some instances where permission is not needed because of “fair use,” but anyone wishing to rely on that exception should work closely with counsel, as the evaluation of whether a particular use is “fair use” can be complicated.
Be clear and truthful with advertising
Federal and state law prohibits unfair or deceptive acts or practices in trade or commerce. If you advertise your products or services on your website, be sure you are truthful and that you can back up claims you make. You are allowed to express an opinion by boasting or exaggerating (e.g., “You will love this product”), but you should have substantiation for factual statements (e.g., “this product performs better than that product”).
Similarly, if you are being paid to put certain content on your site, or if you are given services or products for free in exchange for endorsement on your website, you are required to disclose these arrangements. The Federal Trade Commission has issued helpful guidance regarding online advertising and marketing, and endorsements here.
Protect yourself from claims related to user-generated content
If you allow third parties to use your site to post content that can be viewed by others, you should investigate the “safe harbor” available to online service providers under the Digital Millennium Copyright Act that can limit your liability from third parties’ copyright infringement. To take advantage of that “safe harbor,” you need to include on your website language regarding the process site visitors can use to make claims of copyright infringement about third-party content, and you need to designate an agent with the U.S. Copyright Office who will receive notice of those claims.
Take security seriously
If you accept payments on your website, or if you collect personal information from site visitors, you should be taking security precautions. For example, if you accept payments via credit cards on your website, your merchant account with the credit card processor likely requires you to use an SSL certificate. Even if you aren’t “required” to use SSL certificates, doing so will help protect your website by providing safe connections for visitors.
It also is vitally important to keep the software for your website up to date. Failure to promptly apply a software patch or update makes your site vulnerable to hacking. Using complex passwords and website security tools also can protect your website against vulnerabilities.
In the event your website is hacked, you should promptly investigate the breach and determine whether any personal or confidential information was accessed or used. Most states (including Michigan) have laws in place that require notice be provided to individuals if their personal information has been improperly accessed or used, and some require notifications be delivered as soon as 30 days after discovery of a security breach.
Understand and follow applicable regulatory rules
There are a lot of industry-specific laws governing websites. If your business is related to health care, the financial industry, or another highly-regulated industry, your website needs to comply with laws governing what you can and cannot do on your website, and what you need to say (or cannot say) on your website. If you aren’t sure whether you have regulatory compliance obligations, you should consult with an attorney to help you identify what obligations you may have.
Protect your intellectual property
Your business name and branding can be protected under federal trademark law by registration with the U.S. Patent and Trademark Office. Although registration is not “required,” it will allow you to prevent others from using confusingly similar marks, and it will expand your trademark protection throughout the United States. The first thing you will likely do when setting up a website is to select and register a domain name. Domain names sometimes can be protected as trademarks. Registering a domain name with bad-faith intent to profit from another’s trademark or goodwill (“cybersquatting”) is illegal, and disputes regarding domain names often can be handled through administrative proceedings.
Your original and creative website content, and the “look and feel” of your site, can be protected by copyright. Although you do not need to have a copyright registration for those protections to exist, you should consider whether registration is appropriate for you. Registration is necessary if you wish to bring a copyright infringement action against someone using your copyrighted work without permission. You may delay filing an application to register your copyright, but this delay may limit the damages you can recover through an infringement action. With or without a registration, you may include a copyright notice on your site that identifies the year of publication and the owner of the copyright.
Document your arrangement with developers and designers
If someone helps you create your website or some of its content, having a written contract is essential. Under U.S. law, the person who creates copyrightable work retains his or her copyright in that work unless ownership is transferred in a signed writing. You can’t transfer a copyright through a verbal agreement or a “handshake” deal. If you would like to own the copyright in the images, text, etc. on your website, the creator should sign a statement transferring the copyright in those materials to you.
Contracts also can clarify the scope, timeline and cost for the project, which can be helpful in defining expectations, avoiding misunderstandings and resolving disputes. Although some contracts can be formal and complicated, it is possible to set forth the terms of your contractual arrangement into a letter or an email. Moreover, electronic signatures are generally enforceable in contracts for website and content development.