It is early in the year, and it is time to fulfill your resolution to give your site a quick legal check-up. Online businesses are now highly regulated, and there is substantial liability if your site is not legally compliant. In addition, your customers are becoming more Internet savvy, and a site that is not legally compliant is not going to be trusted.
Use This Checklist If You Already Have The Basic Site Documents In Place
1. Copyright Notice. Check Your Copyright Notice. Your copyright notice consists of the following elements: the word "copyright" or copyright symbol (c in a circle) followed by the year of first publication followed by the name of the copyright owner. It is also a good idea to add "All rights reserved worldwide". Example: Copyright 1996-09 Digital Contracts, Inc. All rights reserved worldwide. Note that if you update your site from time to time, you should add a date range reflecting the fact that the site has been updated each year within the date range. If you have not updated yet for 2009, do it now.
2. Blogs, etc. Have you recently added a blog or any other functionality that permits visitors to post text or digital files to your site? Or, do you plan to do so as part of your marketing plans for 2009? If so, you need to have a DMCA notice in your Terms of Use and you also need to file a DMCA Registration form with the U.S. Copyright Office. These steps will create a "safe harbor" from strict liability for copyright infringement if a site visitor posts infringing material to your site.
3. Personal Information. Do you collect personal information from site visitors? If so, review your Privacy Policy to make sure that you identify all of the categories of personal information you collect and the way in which you share this personal information.
4. Data Security. Check your data security measures. If you collect personal information, you are required to implement "reasonable and appropriate" data security measures. These measures are essentially moving targets since data security technology evolves at a relatively rapid pace. What may have been "reasonable and appropriate" a couple of years ago may not pass muster today. Update your security procedures, if necessary.
5. Future Sale of Your Business? If your online business is starting to be successful and generate positive revenue, have you ever considered that you might want to sell it for a profit in the future? If so, be sure that your Privacy Policy specifies that personal information collected may be transferred and shared in the event of a sale. If you do not do this prior to collecting personal information, you will not be able to pass it on to your purchaser. The Federal Trade Commission (FTC) stipulated in recent settlements that personal information collected prior to posting this notice in your Privacy Policy will not be transferable in the event of a sale. And this personal information (your opt-in lists and customer lists) are the real value of your online business.
6. Service Providers. Do you use service providers to provide hosting, site maintenance, SEO services, or other site functions where they have access to your server? If you do not collect personal information, your answer to this question is immaterial, but if you do (and only an email address will suffice), you need to enter into privacy and security agreements with your service providers. The FTC stipulated in a couple of recent settlements that you would be liable if you do not.
7. Registration Agreement. Does your site require site visitors to register for certain benefits such as a membership or subscription rights? If so, you need an electronic agreement (a so-called "click-wrapped" agreement where the user clicks on "I ACCEPT"). Your agreement should be presented conspicuously in the registration process and it should require an affirmative act (clicking on "I ACCEPT") to complete the registration. You also need to be sure that all of your warranty disclaimers and limitations of liability pass muster.
8. Collect Birth Dates? Do you collect the date of birth as part of your registration process? If so, and if this date indicates that children under 13 are registering, you will be liable for substantial damages under the Children's Online Privacy Protection Act (COPPA) if you do not comply with COPPA's stringent requirements. You should either modify your information collection practices or comply with COPPA, or both.
9. Creditor Under FACTA? Do your registered users make periodic payments payable as monthly or quarterly installments, or do you extend credit so that payment is made after receipt of the product or service? If so, you fall within the statutory requirements of the Fair and Accurate Credit Transactions Act of 2003 (FACTA). FACTA requires that you adopt a "Red Flag" Identity Theft Policy before May 1, 2009, or face substantial liability.
10. Sales Intermediaries? Do you use affiliates or resellers? If so, a recent New York case illustrates that you may be liable for their actions if they violate certain laws acting on your behalf. For example, are your affiliates engaged in illegal spamming activities? If they are offering their own end user license agreements, do they properly disclose certain activities such as the use of pop up ads? You should check your affiliate and reseller agreements and modify them, if required.
Conclusion
The checklists provided above are not exhaustive. However, they should point you in the right direction as you give your site a new year's legal compliance check-up. A simple check-up and remedial action if necessary is one of the best investments you can make in your online business.
Source From SitePro News
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