Most businesses nowadays (whether they are primarily brick and mortar or exclusively online) have a website to promote their business services. Some companies might have a tech-savvy employee create their online presence while others might rely on a Web developer. No matter who creates the website, any business should be concerned with certain necessary content that must be included on its webpage in order to comply with the law and common privacy practice.
The following are four essential elements all businesses should include on their websites.
According to the United States Copyright Office (“USCO”) a “Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.” This includes websites.
A website or other work is protected under copyright “the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.” Because of this, many would assume that there is no need for a copyright notice. However, while not legally required, good privacy practice provides for the inclusion of a copyright notice in order to make users aware that you claim copyright rights and to deter improper use of your copyrighted information. Plus, it is free and simple to do.
A valid copyright notice requires three parts:
- The word “copyright” or the © symbol
- The date for which the copyright is claimed. If the website has been up and running for numerous years, include a date range and be sure to update it each year it is in use
- The name of the person or entity claiming the copyright
A valid copyright notice should look something like this: © 2007-2014 XYZ Corp., All Rights Reserved.
OPPA defines “personally identifiable information” as “information about an individual consumer collected online by the operator from that individual and maintained by the operator in an accessible form.” This information includes a consumer’s name, physical address, email address, telephone number, social security number or “any other identifier that permits the physical or online contacting” of the consumer.
- Categories of “personally identifiable information” the website collects and the categories of third parties with whom the information might be shared
- Description of any process that allows the consumer to change its “personally identifiable information” collected by the website
- How the website responds to Web browser “do not track” signals
- Disclosure relating to whether other parties may collect “personally identifiable information” about the consumer’s online activities over time and across different websites when a consumer uses the operator’s website
According to the California Attorney General, “an operator is in violation for failure to post a policy within 30 days of being notified of noncompliance, or if the operator either knowingly and willfully or negligently and materially fails to comply with the provisions of its policy.”
There are two different types of consumer consent to a website’s TOU:
- A website can require a user to click a box stating that they consent to the TOU (“Click Wrap Agreement”)
- A link to the TOU on the website and a provision stating that the consumer’s use of the website constitutes their consent to the TOU (“Browse Wrap Agreement”)
Obviously, a Click Wrap Agreement is a superior method because the user must take some affirmative action to indicate acceptance of the TOU. These types of TOU are generally favored by the courts. That is not to say that a Browse Wrap Agreement is not enforceable. If your website contains a Browse Wrap Agreement, be sure to include sufficient notice on your website to bind the consumer to the TOU. A privacy attorney can advise as to the necessary notice needed to make such TOU enforceable against the consumer.
A disclaimer is a statement that denies responsibility. The purpose of a disclaimer is to limit the liability of the website operator wherever possible. Disclaimers could be set up on a number of places within your website. You could use a disclaimer to say that the information provided on your website is not intended for legal or professional advice. You could use a disclaimer to let visitors to your site know about how you are, or are not, affiliated with other websites to which you provide links. Also, if outside contributors participate in providing content, you could use a disclaimer to disclaim the accuracy and authenticity of the information contained on your website.
Lisa Allen is an associate attorney at the Lotus Law Center, where she specializes in helping small business clients with their legal needs. The Lotus Law Center was founded as a way to make legal services affordable for all sizes of businesses. Focusing on the practice of business and technology law, the Lotus Law Center provides premium personal and professional responses to the legal needs of business clients at an affordable fixed or hourly rate. Contact her at Lisa@lotuslawcenter.com.