Legal Landmines

If you’re operating a website or conducting internet-based business, what you don’t know may hurt you.

Dangers abound: your contractors could infringe on others’ copyrights and trademarks; others could infringe on yours; you could be held liable for mistakes or omissions on your website; your legal contracts with your online customers could be deemed unenforceable; and your visitors’ behaviour on your site could land you with a libel or slander lawsuit.

In fact, the better your site’s content, design and search engine rankings, the more tempting a target you become. Take Dave Blyth of Auckland-based Webdesign. German and Hungarian web “pagejackers” pilfered his entire home page design, including his logo and brand name. And a Japanese web company placed one of his ad banners in their online portfolio. (He modified the banner to state: “This image stolen from world-webdesign.com.”)

I recently discovered a Russian web development company taking credit for some of my company’s best work – proudly displaying a screenshot of one of our client’s sites on their portfolio page.

How do you shield your organisation from the multitude of online legal perils? Chasing overseas infringers can be an impractical and expensive proposition. But you can minimise some of the risks. Start by consulting your attorney. These tips may also help:

• Disclaimer: What if the outbound links on your site are construed as an implied endorsement? Or a typo in your online prospectus results in an investor losing money? Display a full disclaimer on all site pages.
• Terms and conditions: Don’t stop at the disclaimer; create a comprehensive terms and conditions of use agreement for site visitors. Want it to be enforceable? Make users click an “I Agree” button before they can proceed with their transaction. Woolworths.co.nz, for instance, would do well to integrate this into their registration process. Without it, Woolworths can’t necessarily withhold delivery, change prices or payment policies, discontinue products or limit quantities.
• Arm’s length: If your site includes discussion forums or chat rooms, make it clear that you don’t endorse your users’ opinions, aren’t responsible for monitoring user-contributed material and don’t guarantee that such content is truthful, accurate or reliable. Invite users to inform you of potentially illegal postings, then act on such notices.
• Check for rip-offs: Regularly trawl search engines for unique phrases that appear on your pages. Some website owners purposefully incorporate misspellings into their pages to ease the process of unearthing and proving infringement. Email the infringers. An email to the abovementioned Russian company was all it took for them to remove our work from their portfolio.
• Cover yourself: Display copyright statements at the bottom of every page, not just on your home page, thus making it harder for infringers to claim “innocent infringement” as a defence. Remember, visitors can enter your site at any point through search engine queries.

Disclaimer: This article should not be construed as legal advice.

This article appeared in the November 2002 issue of Unlimited magazine.

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