Note: This article is not intended as a substitute for legal advice. You should consult with an attorney familiar with your situation and the law.
Though some agencies seem to ignore the legal implications of their Web sites (there's an absence of terms of use statements, for instance), it could make sense to understand better how to protect yourself from your users and from your suppliers. In this article we'll focus on three categories of user exposure: privacy, copyright, and terms of use. A privacy statement is concerned with what you do with the information you collect. A copyright statement relates to protecting the content of your site. And a terms of use agreement specifies the services you provide through your site and what you expect from your users. It could also be a good idea to include links to privacy, copyright, and terms of use statements on every one of your Web site pages.
Privacy
Our society in general is perplexed about privacy issues. We oscillate between wanting to protect people from intrusion by business, government, or other parties and the social or business need for collecting and using personal information. For many people, privacy issues on the Internet carry substantial emotional freight. There are also real legal issues relating to the collection and use of information. If you have a Web site, you need to pay attention to privacy issues.
One particular organization, TRUSTe (www.truste.com), makes a business of recommending privacy policies and how to express them to businesses with Web sites. TRUSTe provides a service through which a Web site can be certified as TRUSTe compliant and then display the TRUSTe logo. Visitors who know the TRUSTe drill can then feel confident they're dealing with a privacy-enlightened business and Web site.
Insurance carrier Web sites and nationally branded retailing and information Web sites usually have privacy statements you can link to from the home page. They can be worth examining when developing your own policy, statement, and practice.
Typically, Web site privacy statements address some or all of the following issues:
There isn't one right answer to some of these categories. One site collects and uses information; it's part of their business. The next site doesn't. But it is important to disclose your policy and then practice what you preach.
What happens if you don't have a privacy policy and statement of it posted on your site? Some visitors won't use it; they won't trust you or they'll consider you unprofessional. On the flip side, if you have a privacy policy and you violate its terms, you may be liable to your users under a breach of contract theory.
Copyright
If you put users on notice that you wish to protect the contents of your site from being copied and reproduced someplace else -- without your permission -- you may want to provide a copyright notice on each page as well as a longer copyright statement. Although copyright protection is automatically provided to an original work, without the necessity to place a copyright notice on it, such notice can help prevent unauthorized copying.
The short copyright notice could look something like the following:
Copyright © 2001. The XYZ Agency, Inc. All rights reserved. IMPORTANT NOTICE: The content of this Web site is Protected by The Copyright Act. It provides both civil and criminal liability for acts of copyright infringement.
The longer, linked-to copyright notice should acknowledge the potential for the inclusion of material copyrighted and trademarked by others. It should also explicitly state that your content can only be used within the site and any other use requires your express written consent.
You will want to express your policy about how you deal with potential infringement cases and how you can be reached regarding notices of claimed infringement.
Thus far, we've discussed protection of your content from others. But you need to be careful to honor the rights of others as well.
If you intend to use someone else's logo, trademark, or service mark, find out what their policy is and get written permission before you use it. Some trademarks are worth billions and the companies that own them take a dim view of use without permission.
If you want to embed copyrighted content from another site into your own, ask for written permission first. And if you do use it, be careful about making changes to it. Just because you have permission to copy a copyrighted work doesn't mean you also have the right to change it. You need explicit permission to copy a work AND you need a separate explicit permission to modify it.
Terms of Service
At least in some cases, it appears to be good practice to include what amounts to a contract on your site that specifies what you intend to provide, under what circumstances, and what behavior you expect of the visitor who uses your services. Terms of service, or terms and conditions of use statements, can provide disclaimers and caveats that could prove useful.
Terms of service statements are something like the license agreements common with software. When you install the software, you're presented the text of an agreement. You must click a button to indicate that you either agree or disagree to abide by the terms of the agreement. If you disagree, the installation process is terminated. Note that you don't have to actually read the agreement. If you have the opportunity to read the agreement and then click on the "I agree" button, you will be deemed to have accepted the terms of the agreement, even if you haven't actually read it.
It would be enormously inconvenient to force site visitors to acknowledge some sort of agreement every time they visit the site, especially if the site is free. It appears to be sufficient to have a terms of service agreement in the site and make it conveniently available via linking from every page (in part because you can not predict through which page someone may enter your site).
I won't even pretend to know what should be in your (or any) Web site terms of use statement, but I'll point to some obvious candidates for content.
There should be a statement of who owns the site and that whoever visits and uses the site agrees to abide by the terms of the agreement. If they don't, they should leave.
The agreement should be non-exclusive and non-transferable. The visitor should agree not to interfere with the operation of the site. You may want to explicitly claim your copyright ownership of everything in your site -- another way of getting at the copyright issue.
You may want to include a disclaimer that your information may contain errors and your visitors should rely on it at their own risk on an "as is" basis. It can be important to acknowledge that though you provide links to other sites, you take no responsibility for those sites or for your visitor leaving your site to visit foreign sites. You also want to state that linking does not constitute any kind of endorsement.
It can be wise to disclaim warranties and liability, and to specify a limitation of damages, with you not liable for any damages that are the result of the use of your site. You probably want to expressly state the site is intended for use in the United States, and perhaps even in certain states. It makes sense to say under which state's law the agreement is to be governed and in which state you can be sued. If someone decides to sue you based on your operation of the Web site, you want to make sure that the lawsuit is brought in your own state, rather than in a state that is far away from you.
Caveat
This article is not intended in any way to provide legal advice. You should consult an attorney that knows your needs and the appropriate law before taking any steps regarding privacy, copyright, or terms of use issues relative to your Web site.
You pay attention to legal issues in other areas of your agency. Your Web site is an extension of your agency and it represents a potential area of exposure. But the law governing Web sites may in some cases be different from day-to-day business law, so it would be wise to have some guidance from a legal professional.
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