IF YOU OWN, OPERATE OR HOST AN INTERACTIVE WEB SITE…

IVAN HOFFMAN, B.A., J.D.


        Parties that own, operate or host sites that are interactive have special legal requirements imposed upon them and failure to comply with those legal requirements can subject those parties to legal liability, which liability can be quite substantial.  By “interactive” I mean sites in which visitors can post (including but not limited to via blogging, chat rooms, mailing lists, news groups, forums and other forms of posting) or otherwise interact with the site and with others on the site.

        The Internet is no longer a place of “Gee whiz, I think I’ll put up a site.”  There are an extensive body of laws that affect this very important medium.  But even after over 3 decades of being an attorney, I am continually amazed at how parties risk losing all of their “possessions” on the Internet because they fail to take some the necessary steps to protect their assets and at the same time, expose their real world assets that are then at risk from lawsuits, damages, civil penalties and other liabilities that arise from a failure to comply with these (or other) laws.  These same parties would likely never keep their real world possessions exposed for others to take and almost assuredly keep locks on their doors to protect the same.  But when it comes to other assets including their intellectual property assets (often assets more valuable than sofas or end tables), parties go stark naked into the world without such protection.

        Let me thus give an overview of some but certainly not all of the issues and laws related to interactive web sites.  I have written about many of these issues more extensively in the various articles referred to and thus this article is merely an overview.   However, there is no “one size fits all” approach and you should contact an attorney with experience in these matters for advice about your specific situation.  This article is not intended to cover all laws of all states or all federal laws or even laws of other countries that may affect the site.

Terms of Use

        Clearly the site needs a legally appropriate set of terms of use dealing with a wide variety of legal issues including but not limited to rules about posting, issues regarding rights, issues related to links to other sites, issues related to advertising, issues related to jurisdiction and venue, among many other issues.

        But it is not enough to have terms of use.  The terms of use have to be posted in such a manner so as to create a legally binding obligation on the part of the user to those terms of use and this can only be done via a very specific posting mechanism that signals very clear consent to the same.  Read “The Validity of Online Contracts.”

Privacy Policies

        If your site collects information about the users in any manner whatsoever, then the site may be subject to a number of different law.  Although a California law, the reach of California Business and Professions Code sections 22575-22579 may extend beyond the borders of that state and potentially affect all sites on the Internet.  Read “Mandatory Privacy Policies,” “Privacy Issues: New Wrinkles” and “The Privacy Audit Check List.”

If your site caters to children or if you know that your site is visited by children, then you must comply with the provisions of the Children’s Online Privacy Protection Act (COPPA).  Read “The Children’s Online Privacy Protection Act” and “Verifiable Parental Consent under COPPA.”   The penalties for failure to comply are very substantial.

The Digital Millennium Copyright Act

        This federal law governs copyright aspects of the operation of interactive web sites.  There are very specific requirements for how the party “hosting” or “operating” such sites must behave including but not limited to complex rules about the nature of any participation of the said party in the postings made by others as well as the mandatory requirement of the posting and filing of a designation of agent.  Read “The Notice and Take Down Provisions of the DMCA” and “Are You a Service Provider?”

The Communications Decency Act

        This act is also exceptionally important to the operation of an interactive web site and there are provisions dealing with the manner in which the operator of the site is involved in the postings thereon.  Read “Are You The Provider of An Interactive Computer Service?” and “Defamation on the Internet.”

Spam

        The operator of a web site that is used as part of “spamming,” whether via email or otherwise, can potentially be liable under the federal CAN Spam law and other laws depending upon whether that party falls within the scope of the laws’ provisions.  Read “The Federal Can Spam Law.”

Blogging

        This new phenomenon presents a wide variety of legal issues for the operator or host of the blogging site.  Read “Blogging Rights and Obligations.”

Conclusion

        As indicated, this article presents merely some but not all of the potential issues faced by the operator or host of an interactive web site.  This article is not intended to cover all laws of all states or all federal laws or even laws of other countries that may affect the site.

        If you are going to be in the Internet business, you have to comply with the laws that regulate your business.

Copyright © 2006 Ivan Hoffman.  All Rights Reserved.

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This article is not legal advice and is not intended as legal advice.  This article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article is based on United States law.  You should consult with an attorney familiar with the issues and the laws of your country.  This article does not create any attorney client relationship and is not a solicitation.

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