Whether you are an active participant in e-commerce, maintain a passive website, act as a website designer, provide content or work with the websites of others, you must understand and monitor a wide variety of legal issues before they become problems. A thorough website audit is a crucial tool designed to help you determine whether or not certain changes are necessary to avoid litigation and make sure that potential problems are corrected.
Following is a checklist of just some of the issues that should be covered in the course of any examination or audit of your website.
- Who created the website? If it was created by an independent contractor web designer, it is critical to have a valid, written agreement transferring all necessary rights.
- Are the copyright notices that are used on the website appropriate and consistent?
- Should you register the website or portions of it with the United States Copyright Office?
- Does the website fully comply with and take advantage of the Digital Millennium Copyright Act (DMCA)?
- Does the site fall within the DMCA safe harbor protections afforded to sites that allow for the posting of information by outside parties? This is particularly relevant for any website that allows for the exchange of ideas through forums or other similar electronic communities that are becoming more and more popular at various sites.
- Who creates the content that is actually published and used at the website, including any written material, graphics and photos, and have appropriate agreements and clearances been obtained? Consider the Tasini case discussed in the last Electronics & Computer Law newsletter (Spring, 2002).
- Do you have an appropriate agreement with your provider of hosting services? Can you easily transfer to a different host? What are the remedies for downtime?
Trademarks and Domain Names
- Have you obtained necessary rights to trademarks and domain names?
- Are trademark notices and usage appropriate, and used consistently throughout the website?
- Are you aware of potential infringers of your trademarks?
- Can you take advantage of the Uniform Domain Name Dispute Resolution procedure to obtain domain names that infringe your trademarks?
- Are appropriate legal disclaimers and warranties relative to the use of any information, materials or products that are offered through the website set forth in a location that is easily found by any person accessing the website?
- If other sites are linked does a disclaimer of non-endorsement appear? Have you considered using linking or framing agreements?
- Are on-line or click-through licenses necessary?
- Have you considered obtaining a seal of approval certifying that your policy meets certain minimum standards from Trustee, BBB Online or other organizations?
1. What personal information is collected?
2. Are "cookies" used and for what purpose?
3. Who collects and maintains the information?
4. What is the information used for?
5. Is the information shared or sold to others?
6. Does the owner retain the ability to transfer the information upon sale of the business?
7. Can the user opt out of any particular type or use of data?
8. What are the consequences for opt out?
9. Can the user access incorrect data associated with their own account and if so how?
10. What ability does the website owner have to amend the policy?
12. What steps are actually taken to maintain security of the information?
13. What is the policy for collecting information from children?
14. Does the website owner desire to comply with foreign laws and regulations such as the privacy directives of the European Union?
The commercial power of the Internet has resulted in an explosion of usage, new laws and first-of-its-kind litigation. It is important to follow this ever changing legal landscape and update your website as necessary. By periodically performing an audit of your website you can make sure that you are taking advantage of any new laws and regulations.
Courtesy of Michael R. Cohen.