THE WEB SITE AUDIT CHECK LIST
IVAN HOFFMAN, B.A., J. D.
Needless to say, there are fundamental issues that are presented even before a site is designed or launched. These involve the selection of a domain name, trademark searches and the like. Read the articles under the link “Articles About Domain Names and Trademarks.” However, this article presumes that you have cleared these issues and are now facing the design, development and ultimately the launch of the site.
Let me then provide a check list of some of the issues so presented. Some of these are more fully explored in the articles indicated.
Who Created the Site?
1. Has your site been created by yourself or a bona fide employee of your company? If not, was it created by a third party independent contractor web designer? If the latter, do you have a valid, written web design agreement with the designer transferring all rights to you? Read “The Need for a Written Web Design Agreement” and “Who Owns the Copyright in Your Web Site?”
2. If you are a web site designer who has created the site for a client, what is the status of your web design agreement? What rights do you have to the site? Read the above and other articles under the same link.
1. What is the content and who created it? If you are the sole creator and have used no material belonging to another party, generally not a problem. But if there is written material, graphics, photographs, music or anything else created by a third party, the issues raised deal with rights to use such material and involve obtaining appropriate clearances and rights to use such materials for a web site and any other uses contemplated. Read “The Use of Protected Materials on Multimedia Web Sites” on my site.
2. If the content has been created in whole or in part by a third party, then some of the issues faced by you as the site owner are:
a. Was the third party an employee of yours? There are many factors courts look to in determining whether someone falls into this category and the answer may help decide what rights you have to that party’s work.
b. If not an employee, do you have a valid, written work made for hire agreement or some other form of written agreement transferring to you all of the rights to that material? Read “Work Made for Hire Agreements.”
c. If not an employee and you do not have a valid work made for hire agreement, you will need to license the content. The questions you need to ask initial relate to how you intend to use such material. Do you want to use such material merely on the web site or do you contemplate usage in other media, such as off line, hard copy uses, or in other manner of use such as in marketing and promotional materials, as but some examples. Read “The Need for Vision” and “The Permission Form.”
d. Does the material you intend to use on your site involve screen shots of another site? If so, read “Screen Shot Liability for Computer Book Authors.”
e. If you are running an online education site or a licensee of content in that area, there are many, many issues you must face regarding rights, licensing and the like. Read the extensive articles on my site under the link “Articles About Corporate Training and Online Education.”
4. Have you registered the site for copyright? If not, your rights in the site may be put at substantial risk. Read “Do I Need to Register My Copyrights?” Read “Look and Feel Protection for Web Sites? Have you applied for a trademark on your unique domain? Under certain circumstances, domain names can be trademarked. Read “Domain Names and Trademarks.”
5. Have you obtain permission for certain kinds of linking rights to other sites? While generally linking is not a problem, if you have linked in such a manner as to potentially infringe on the linked site’s rights or have implied endorsements from the linked site to yours or in some other manner created potential liability issues by virtue of the linking, this must be examined. Read "Linking and Crawling Issues."
6. Who has created the META tag and keywords and have you cleared any potential issues in this regard? There is a growing set of legal issues dealing with infringement claims by these tags and keywords. Read “Keywords, Metatags and Trademarks.”
7. Do you have the appropriate disclaimers on your site? Read “Disclaimers.”
The next set of issues revolves around just what rights you may have to use the material created by another.
1. If you have acquired the rights via a valid, written and signed work made for hire or agreement, then you probably have all rights including the rights to post it on a web site. However, such agreement should be carefully reviewed by experienced counsel since work made for hire agreements are subject to legal requirements.
2. If you have some other form of acquisition agreement, that agreement must be carefully reviewed to determine whether the rights granted include web site rights. Merely calling certain rights “electronic rights” is generally unhelpful since that terms, although in frequent use, has very little meaning. Does it mean web site rights or is it a reference to use in some electronic format such as a CD-ROM or DVD? Does it include the right to sublicense the rights to another site or to repost the material elsewhere?
3. What sort of representations and warranties come with the license from the licensor? Are there any promises made that the licensor actually owns the rights to what they purport to grant to you?
Content of the Content
1. Are you potentially liable for copyright or trademark infringement or libel or invasion of privacy or rights of publicity for the content? Issues here revolve around the degree of control over that content that you exercise. The more content control, the more you look like a publisher and thus liable for such actions. The less control, the more that you merely act as a conduit for such content, the more likely it may be that you can exculp yourself from liability under the provisions of the Communications Decency Act and the Digital Millennium Copyright Act. However, there are complex provisions regarding whether or not you qualify under the definition of a “service provider” under the DMCA and if you do, what steps you have to take to avail yourself of that shield. Read “Are You a ‘Service Provider?’” and “The Notice and Take Down Provisions of the DMCA” and “Defamation on the Internet.”
2. Do you have in place legally mandated provisions for removing offending content should you be aware of the same? Again, the above federal statute sets forth specific requirements for this procedure.
3. Are you using content for commercial purposes that may violate state and federal laws? Do you accept advertising and if so, does it comply with these laws? Do you have agreements with your advertisers covering these issues? Read “Online Advertising and Affiliate Agreements” and “Strategic Alliances.”
4. If you have a e-commerce site, have you made appropriate provisions regarding the collection and remission of all applicable taxes?
5. Have you complied with whatever applicable state laws might apply. In this regard, as but one example, see “The California Long Arm Statute.”
6. Is your site running a database and if so, have you taken steps to try to protect your database via copyright? Read “Database Copyright Protection (Or The Lack Thereof).
1. Do you have clickable forms of acceptance of your Terms of Service? Do you even have Terms of Service provisions? Do visitors have to exercise some sort of affirmative method of reading and accepting any disclaimers on your site about the content? Read “The Validity of Online Contracts.”
2. Do you have interactive chat or message boards? What policies if any do you have for dealing with postings? Are these policies known to your visitors? Must the visitors affirmatively consent before posting?
3. Do you have a “privacy notice” and if so, what does it say? Often a site may post that it does not intend to repurpose information provided by visitors and may then find that the site has eliminated the licensing of this data as a potential source of income. Read “Privacy Issues: New Wrinkles.”
4. Are you subject to and have you complied with the enormously complex Children’s Online Privacy Protection Act, especially the need to obtain verifiable parental consent? Read “The Children’s Online Privacy Protection Act” and “Verifiable Parental Consent.”
5. Are you a membership site and if so, do you have a membership agreement on your site and set up in such a manner as to create the best chance that it is enforceable? Read “Membership Agreements.”
6. Do you have liability insurance for your site? Read “Online Liability Insurance.”
The issues enumerated above are but a small sampling of the issues potentially raised in the creation, launch and operation of a web site. This article is not intended to be nor can it be exhaustive of these many issues. Each site audit is really determined on a case by case basis.
It is the wise site owner that works with an experienced Internet lawyer who can assist the owner in going through this process so that the inherent risks involved with these matters can be reduced. Of course, even in the best of audits, such risks cannot be totally eliminated. But this fundamental work should be done before the site is created and certainly before it is launched.
Help me is almost always cheaper than fix me.
© 1999, 2001 Ivan Hoffman