Privacy Policy 101: What Every Website Owner Should Know

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Privacy Policy 101: What Every Website Owner Should KnowHere are Internet Lawyer Mike Young’s answers to frequently asked questions (FAQs) about website privacy policy requirements. If you own a website, this is vital information for protecting yourself from lawsuits and government investigations.

General Information About Website Privacy Policies

Q: What is a website privacy policy?

A: It’s the legal document that describes the website owner’s policy with respect to the privacy rights of site visitors.

These rights may be multi-tiered.

For example, a website visitor may have different rights and responsibilities than a paying customer with access to a restricted membership area.

Related Article: 5 Warning Signs You’re Using The Wrong Website Legal Documents

In addition to the legal aspects, a good privacy policy builds trust between the site owner and visitors.

On the other hand, the lack of a policy (or a poorly drafted one) creates suspicion the website owner is dishonest or an amateur treating the site like a hobby.

5 Warning Signs You’re Using The Wrong Website Legal DocumentsQ: Are privacy policies required?

A: Although not all jurisdictions require websites to have privacy policies, some countries and states do.

The problem with this is that most sites do not restrict access by geographic location. This means that if you’ve got a site with visitors from another state that requires sites have privacy policies, you have potential liability issues even if the location(s) where your site is based and hosted do not have such requirements.

Even if you win, it’s costly to defend against a lawsuit by a state’s attorney general or a consumer protection lawyer who attempts to get a class action certified again you as site owner for violating privacy laws you may not have even known existed.

Q: Can I save money by writing my own policy from scratch?

get website legal protectionA: Probably not. Imagine you broke your arm with a compact fracture. The bone has pierced the skin.

Would you try to stop the bleeding, stitch up the wound, and set the bone at home with a do-it-yourself cast to save a trip to the emergency room? Chances are you’d end up spending a fortune later in medical bills trying to save the arm from amputation.

The same principle applies to legal issues like online privacy rights. It’s penny-wise and pound foolish to cut corners here pretending to be an experienced Internet business lawyer…

Website Accessibility For The Blind: Will You Be Sued?

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website accessibility for the disabledAs recently reported by the Wall Street Journal, there’s a new trend of trial lawyers cashing in by suing over website accessibility for the blind under the Americans With Disabilities Act (ADA).

Does The ADA Apply To Website Accessibility?

The courts are split on whether or not the ADA actually covers website accessibility for the visually impaired and other disabled persons. For some, a key factor is whether or not the business also has an offline presence (e.g. a brick-and-mortar retail store) in addition to the site itself.

However, plaintiffs’ attorneys will want to settle these cases without a court getting to the point of examining the merits of the underlying discrimination claims. To minimize potential liability, defense counsel (and defendants’ insurers) also have an incentive to settle pre-trial.

Given this situation, it’s likely that a website owner will spend over $100,000 counting the settlement amount and defense costs.

Like many lawsuits, the attorneys are often the primary beneficiaries (fees and expenses) while the actual plaintiffs incidentally benefit. The lawyers may get the lion’s share of any monetary settlement while the blind plaintiffs get the “win” to the extent the defendants agree to modify their websites to make them more accessible.

How To Make Your Website More Accessible For Visually Impaired Visitors

According to Internet Lawyer Mike Young, the American Foundation for the Blind has created a valuable resources page with helpful tips on website accessibility. Be sure to also check out the W3C’s Web Content Accessibility Guidelines (WCAG) 2.0.

You may also wish to encourage visitors with vision impairment to use software applications like Microsoft’s Narrator, Apple’s VoiceOver, and the KNFB Reader (available for iOS and Android OS devices) to experience your website’s content.

As a final note, there’s no guarantee that your company still won’t be sued by someone looking for a payday rather than actual website access. However, by taking a few reasonable steps, you’re reducing your legal liability exposure while making a positive impact in the online world by accommodating those who are blind or have other disabilities.

Of course, if you have any questions about website legal compliance issues, you should consult with an experienced Internet lawyer.

Additional Reading: Law firms file and settle dozens of ADA suits claiming websites aren’t accessible to the blind by Debra Cassens Weiss (ABA Journal, Nov. 1, 2016).

Social Media Policy: Don’t Commit Business Suicide

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business social media policy

Do you know the 3 types of social media policies companies should have?

There’s a Utah company that may have killed its business by creating a ridiculous social media policy.

The company gave all of its customers a contract addendum that required the customers to set up Facebook accounts and “like” the business’ FB page. In addition, the new policy authorized the company to use the customers’ photos in social media for marketing.

Misusing Social Media Policies as a Big Stick

It gets worse…

The company told customers that if they didn’t cooperate, the business would consider them to be in breach of contract.

Is this legal? Of course not.

Before any lawsuits have been filed, the company is already paying a heavy price.

Lost customers.

Negative publicity.

They’ve even been forced to shut down their Facebook page in damage control after its rating dropped to one star and the page was filled with angry comments.

Should Your Business Have a Social Media Policy?

That’s actually a trick question. You should have separate policies that cover your customers, your employees, and your independent contractors.

Your Customer Social Media Policy

Instead of threatening your customers, set up a system that pleasantly asks your satisfied purchasers to share their positive experiences in social media as an indirect way to promote your company.

  • Do: Show customers how to use Facebook, other social media, and review sites to serve as your brand ambassador using their own words. Comply with the posting guidelines for each site.
  • Don’t: Game the system by having them post to social media from your office. It sets off red flags at Google, Bing, and review sites if there are a bunch of canned testimonials and “likes” posting from a single IP address.

Your Employee Social Media Policy

Although you don’t want your company’s image tarnished by a rogue employee’s social networking, there are limitations on what your policy can do to control their actions.

For business-oriented sites like LinkedIn, it’s relatively easy to provide guidelines in your policy for what an employee can and cannot say, particularly with regard to their titles, role(s), and responsibilities at your company. However, content on personal social media sites like Facebook is tougher to control.

Your company’s Internet lawyer should craft a policy that doesn’t impose unreasonable restrictions on your employee’s free speech and privacy yet limits the ability of the employee to hurt your image by tying you to offensive or obscene content.

  • Do: Provide guidelines that sets parameters minimally necessary to protect your company. For example, if your employee identifies as a coke-snorting neo-Nazi who goes to plushie swingers parties, you probably don’t want your company’s name associated with those activities.
  • Don’t: Act like Big Brother. For example, never demand login access to your employee’s social media accounts or require your employee to “friend” you so that you have access to spy on the employee’s actions.

Your Independent Contractor Social Media Policy

If you’re outsourcing work to freelancers, you may not want your customers or competitors knowing that you’re doing so. It could mean lost business from unhappy customers and the competition poaching your talent.

  • Do: Limit the scope of what a contractor can and cannot say in social media about the contractor’s role at your company, including the services performed.
  • Don’t: Treat a contractor like an employee with your social media policy because it could be used against you to re-classify the contractor as an employee for taxes, worker’s comp, unemployment comp, benefits, and other purposes.

Is It Too Late to Set Social Media Policies?

Not yet…but waiting creates a ticking negative publicity time bomb that could go off at any time.

Even if you already have contracts in place, you can create policies designed to protect you and have them properly added as amendments. Not by using threats but with incentives (carrots) that make your new policies a win-win for everyone involved.

It’s also relatively easy for your Internet lawyer to set up your future agreements with customers, employees, and independent contractors so that the contracts include your social media policies too.

10 Keys to a Great Website Design Agreement

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website design agreementWhether you have an existing site that needs to be modernized or want a new site, a written website design agreement will be important protect you and your business from costly mistakes. The contract will also reduce the chances of conflict between you and your designer that end up in court.

Sometimes referred to as a “website development agreement,” here are some of the key issues you’ll want to have addressed in your contract.

  1. Scope of Work. Also known as a “statement of work,” the scope of work section of your contract should identify in detail what is to be done by your designer. To protect himself, your designer may also want the agreement to specifically exclude certain design and development tasks that do not fall within the scope of the work to be performed.
  2. Change Orders. If you decide that work needs to be done beyond the Scope of Work, the contract should provide for the use to change orders to modify the scope. This may also include changes in deadlines and pricing to reflect the additional work.
  3. Work Timetable. If it is not addressed within the Scope of Work, your contract should identify elsewhere the timetable for deliverables, including milestones that trigger certain events (e.g. partial payment to the designer). The timetable should also include a beta testing phase so that you can feel comfortable the site works as intended.
  4. Payment. How and when you will pay your website designer should be included in the agreement. As the business owner, you’ll want to pay as little up front as possible and back end payment(s) so that it encourages your website designer to perform all of the services within the Scope of Work. On the other hand, there’s an incentive for the designer to get paid up front to avoid getting stiffed for design and development services rendered. Needless to say, payment provisions are negotiable and you should be able to come to an arrangement that satisfies both parties.
  5. Independent Contractor Status. Your website design agreement should make it clear that your designer is working as an independent contractor instead of an employee for your business. You do not want to end up in a legal mess where your designer has filed for unemployment compensation or worker’s compensation against your business based on alleged employment status.
  6. Intellectual Property Ownership. Many business owners mistakenly believe that website design done on a work-for-hire basis automatically means the business owns the intellectual property created by the designer. That may not be the case. You should address IP ownership in the agreement. Many designers create their own swipe files of work that they use as-needed to design and develop sites for multiple clients. If you want exclusive ownership, you may have to pay a premium to the designer. You may also have to pay to license certain content (e.g. stock photography and software apps).
  7. Warranties and Disclaimers. Your agreement should have a section that specifically covers what warranties your designer is giving, what warranties are excluded, and possibly limitations on liability.
  8. Confidentiality and Non-Competition. The contract should make sure that your confidential information that’s shared with your designer stays confidential. The agreement should also prohibit your designer from competing against you and perhaps working for your competitors for a certain period of time.
  9. Assignment and Subcontracting. You should make sure that your agreement restricts or prohibits assignments and subcontracting by your website designer. Your website designer may balk at this, particularly if parts of the work is being done overseas by freelancers who work for the designer. If you decide to permit such to occur, you’ll want to make sure those freelancers are bound by the same protections you’re provided in the agreement (e.g. confidentiality and non-competition provisions) as well as make it clear that you’re not liable for paying subcontractors if the designer decides not to pay them for some reason.
  10. Applicable Law and Dispute Resolution. Your agreement should state what law governs the agreement (e.g. the laws of the State of Texas and applicable federal law of the United States of America). Your agreement should also address how disputes will be handled. There can be different paths to take depending on the severity and type of breach. For example, if there is dispute as to whether your designer has substantive performed the Scope of Work on a timely basis, you may want that type of dispute handled by commercial arbitration. On the other hand, if the designer clones the website you paid for and sells it to your competitor, you may want to be able to march into a court and seek injunctive relief.

Of course, the terms of your website design agreement will vary depending upon your specific needs. So if you need a new agreement to protect your interests or have the designer’s website agreement template (that favors the designer) professionally reviewed and revised before you sign, your first step probably should be to set up a telephone consultation with a qualified Internet lawyer.

Amazon Associates’ Child Directed Policy, COPPA, and Your Website

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coppa childrens online privacy laws

Amazon recently emailed its affiliates (called Amazon Associates) to let them know that “sites targeted at children under 13 are not eligible to display links and advertising from the Amazon Associates program.”

Amazon sells children’s clothing, toys, games, etc.

So why would the company do this?

The reason is simple: potential legal liability.

There’s a U.S. law known as the Children’s Online Privacy Protection Act of 1998 (COPPA). This makes it difficult to legally do business online with websites that target (directly or indirectly) children because there are many extra requirements for doing so. If your website violates the law or related regulations, chances are you’re exposing yourself to lawsuits and government investigations by the U.S. Federal Trade Commission (FTC) and other consumer protection agencies.

If you’re an Amazon affiliate, the company doesn’t want to end up being liable for you putting ads on a site that violates COPPA.

What if your site isn’t targeted at young children?

You probably ought to make that clear on your site, both in your content and the website’s legal documents. That’s why the customized site documents I draft for clients (privacy policies, terms and conditions, etc.), and my legal forms generated by Website Legal Forms Generator software (http://LegalFormsGenerator.com), inform visitors that a site is not intended for children and imposes limits on how minors can use the website with parental involvement.

What if you do have a children’s website covered by COPPA?

Have a qualified Internet business lawyer review your site to ensure you’re not violating COPPA. Let’s face it. If Amazon thinks there’s a legal risk, chances are you don’t want to violate that law either.