“Your website or blog is fundamentally a contract between you and your customers or visitors. You are accountable for the content you put on your website or blog, and, consequently, open to legal problems and litigation” (Orion Systems, 2014).
In an era of new legislation and with recent changes in focus from the Federal Trade Commission, web site owners should take a close look at their site’s operations. Rules are becoming stricter in the Internet advertising medium, even more than with television. And the penalties are rising. If you own an Internet website or blog, it needs to comply with the laws and regulations of the Federal Trade Commission and other state and federal agencies. Orion Systems, which has been helping to protect website owners since 1999, offers some advice.
Why Using Website Disclaimers and Legal Documents is Now More Important Than Ever
As with many changes in the business world, there has been a change in the political and legal arena in which websites operate. Failure to respond to these changes may expose any website, its owners, and their business to real harm in the form of penalties and litigation.
There are three big changes of which every website owner should be aware. Some of these are from the state of California. It is currently not feasible to operate a United States website and exclude California residents from using it. And, a simple “Not for California residents” notation is in no way sufficient. Thus, all sites should be California compliant. There are many legal changes for 2014, but the laws and activities which are most on the forefront of legal change are as follows:California’s “Do Not Track” law. It affects almost all website and blog owners. The ability of web browsers to tell websites not to “track” their activity or location has been around for a few years. Website owners must now conspicuously state to visitors how they will handle this request. However, many web site hosting companies offer no solution to the site owner. The site owner needs legal advice and appropriate site language to remain compliant. This law started on January 1, 2014. Are you in compliance?
- California’s “Do Not Track” law. It affects almost all website and blog owners. The ability of web browsers to tell websites not to “track” their activity or location has been around for a few years. Website owners must now conspicuously state to visitors how they will handle this request. However, many web site hosting companies offer no solution to the site owner. The site owner needs legal advice and appropriate site language to remain compliant. This law started on January 1, 2014. Are you in compliance?
- The Federal Trade Commission (FTC) has started becoming more restrictive on website operators who utilize testimonials, endorsements, reviews and affiliates.
The Not-So-Great Eight
The following are eight items that every website owner must understand and address to help avoid litigation as they are the cause of most legal issues.
- Posting copyrighted materials.
- Posting defamatory content. Even an opinion blog cannot cause intentional harm.
- Posting inaccurate information or claims.
- Not disclosing paid product reviews or endorsements.
- Actual harm to a customer from a product sold on the site.
- Not disclosing that you are an affiliate of another company.
What You Can Do:
There are three basic legal defensive tools that can assist in lowering the possibility of legal problems and, which can also be of mitigating influence should they still arise: disclaimers and disclosures, terms and conditions, and privacy policies. Each of these has various components, not all of which are applicable to every business. Website owners need these three main defensive tools in place now to protect themselves, their sites and their business into the future.
1) Disclosures and Disclaimers
Both must be “clear and conspicuous” such that a “reasonable person” would see them. Burying things in fine print at the bottom of the page is now reserved for the late night infomercials. Clear and conspicuous means near or in line with the text it refers to as much as possible. Side bar or top navigation tabs can be good places for disclaimers and disclosures. The text and font should be the same and same size, or bigger. Capitalization is encouraged. Site visitors are assumed to be too disinterested to scroll down to the bottom to see a disclaimer unless expressly told in the text line “see more information below.” This still has its limitations. What if the mobile version of the site has issues with scrolling down? What if the sidebar isn’t even visible on the mobile version? Then the disclosure must be moved. Mobile sites are not exempt.
Disclosures are a way of qualifying statements and claims made on the website to avoid misleading the visitor. Informing readers that reviews of products provided are compensated for, is an example. One of the most important disclosures that now must be made is the subject of “Do Not Track” law. California law states that when people do not want to be tracked, the website does not have to obey. It does, however, mandate that the website states what it will, or will not, do when a website visitor/browser sends a “do not track” notification.
The answer may be “we do not honor this request,” but it must be stated in writing and be conspicuous. These laws are not without teeth. Failure to do so can result in a $2,500 fine per occurrence. Use online assistance like DisclaimerTemplate.com, your attorney, or a third party specialty organization that handles such web activity, such as the Orion Systems, to get compliant quickly.
Disclaimers are limitations of scope or obligation between two parties. As mentioned earlier, website owners and their visitors are basically in a contract regarding the exchange of information. Disclaimers stating that the website owner is not liable for web content not generated by the business (such as comment forms and forums) are common. An important disclaimer is in regard to affiliates and their promotions of your products (who they are, what they do, what you monitor about their activities). Note that disclaimers such as “results atypical and yours may vary” do not get business owners off the hook when making claims on the Internet. You are still responsible for any consequences resulting from writing false or misleading statements.
As mentioned above, the “clear and conspicuous” standard for a “reasonable person” may require many websites to change their layout and their thought process on how to build a “legal-friendly” site. The three “Ps” are worth memorizing when considering “where to put” any legal information on a website: proximity, placement, and prominence.
And there are even multimedia distinctions, such as an audio section of a website would need an audio version of any pertinent disclaimer. Getting professional advice could be a crucial step for any business owner who needs to get their site compliant and current.
2) Terms and Conditions
A Terms and Conditions agreement is a legal contract between your business and your customer. The agreement sets out the terms of this relationship. Certain topics must be covered: website content, financial/advice, sponsors/advertisers, intellectual ownership, errors and changes, limitations of liability, refund policy, and arbitration of disputes.
Similar to disclosure and disclaimers, terms and conditions must be clear and conspicuous. Hyperlinks may be used, but avoid them as much as possible. Whenever possible, try to incorporate terms and conditions into the sales text on the site.
One of the best ways to ensure knowledge of an agreement with Terms and Conditions is the “click through,” most often seen when downloading a program or information. The user must click “I Agree” to continue.
In addition to the “big three” statements, above, there are other disclosures and disclaimers that are also required by law for many sites.
Here is a listing of some important ones:
- Affiliate marketing agreements, if you use affiliates (or are one).
- Content disclaimer for anything stated by a third party. Useful for blogs.
- Advertising disclaimer that you are not responsible for third party ads.
- Advertising contract for anyone advertising on your blog or site.
- Earnings disclaimer if you sell “making money” type products.
- Medical disclaimer for health, vitamin and medical sites.
- Email disclaimer. Set up your email with this important defensive tool.
- Limitation of Liability for LLCs.
- Assignment of Copyright. If you had a third party or freelancer create or work on your site, have them sign this, assigning you full rights to their work.
- Opinions disclaimer. Useful for blogs or political sites with third party content.
- DMCA takedown notice. A very useful tool and available since 2010, the Digital Millennium Copyright Act allows a fair timeframe to settle copyright disputes with minimal legal involvement.
- Product disclaimers are important and essential to protect many businesses from customer misuse of products (“Do not stand above this rung of the ladder,” etc.).
- Disclosure of material connection. Very important with the FTC’s new revisions to its guidelines. Testimonials, customer reviews, blog posts and endorsements that are paid, encouraged or solicited must be disclosed as they are promotional (“advertisements”).
These recent changes in the law can be head spinning for some, and a headache to others. Some of these laws were in use before the Internet era. It is their use and new mandates requiring them, which are new and newsworthy to many business owners and bloggers. Getting help can be essential to complying quickly. At $2,500 per occurrence of a violation, there are few businesses that can’t afford not to remedy these issues with their websites and blogs.
For more information and free documents to protect your website and business, click here.