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Legal Issues for Online Publishers

Terms and Conditions of Use for Your Site

A "Terms of Use" statement is a must for a website, especially one that offers resources or solicits input and interaction from users.  These statements clearly set out how resources may be used and what your site will not allow in terms of unlawful or libelous postings, obscene material, or child pornography.

Data Collection and Website Privacy Practices

It is important to tell visitors to your site what type of information you collect about them and what you intend to do with the information. Usually, it's best to assure your visitors that their information will not be sold or given to other parties.

While not strictly a legal issue, such disclosures give participants a sense of what is going to be done with their personal information, which helps inspire trust in the publication. Also, by disclosing this information up front, as long as you follow your own policies, it can't later be claimed that you acted without the user's permission.

Some sites require visitors to register if they want to access content and post comments or queries. The registration process can generate some useful demographic data, particularly for marketing purposes, but you need to be aware that some visitors will resent taking the time to register and be suspicious of how their information will be used. Furthermore, given the widespread threat of website data-hacking, you need to take reasonable safeguards to assure site security.

If you intend to collect private personal information that will be shared with a financial institution, such as accepting credit cards for advertising buys, conference registrations, product sales, or charitable donations, you need to comply with the Gramm-Leach-Bliley privacy law. The Act imposes explicit rules  such as handling of privacy notices, opt-out rights and how private information can be resold, among other rules.  You can read more about the Gramm-Leach-Bliley Act.

Sometimes, users post information that is ordinarily private like addresses or phone numbers belonging to themselves, fellow employees for a company website or members of a club on the club's website. If the information disclosed violates the privacy of others, those disclosures may prompt legal action by the person whose private information has been made public depending on how the information got posted and the state law that applies. 

Forum Selection Clauses

Forum Selection Clauses can be used to state how a complaint against you can be made; in which jurisdictions you will agree to be sued ("forum selection"); and whether you prefer arbitration or a court suit.

Such provisions must be clear and conspicuous on the site.  You may want to consider the use of click-through technology to be assured that the user has reviewed the policies during registration or subscription. In other words, the user must click "through" the terms in order to complete registration.  In any event, stating that any actions filed against you must be brought in the city where your business is located is strongly urged – you don't want to have to fly across the country to defend yourself in court.

Absent unconscionable or unreasonable provisions, your choice of forum for determining disputes should be enforced by the courts.  See, e.g., Graham Technology Solutions, Inc. v. Thinking Pictures, Inc. (N.D.Cal 1997) 949 F.Supp.1427.

While it may seem attractive to try to limit the number of lawsuits you may have to defend by selecting a hard-to-reach location, such as Nepal or the British Virgin Islands, be forewarned. Courts have limited unreasonable conditions.

In Comb v. PayPal, Inc. (N.D.Cal.2002) 218 F.Supp.2d 1165, the court found an arbitration provision unconscionable and refused to enforce it because of the high cost of private arbitration when compared with the low-dollar value of the individual claims being submitted against PayPal.  The court determined that the use of high-cost arbitration acted to discourage legitimate claims. Discouraging legitimate claims was found to be procedurally unconscionable to PayPal's customers.

Handling Claims of Copyright Infringement

Occasionally, someone will claim that copyrighted materials have been posted on your site. This frequently happens when a user cuts-and-pastes material from another site.  Consequently, most sites should develop a policy for dealing with such claims. 

The easiest way of handling such claims is to comply with Section 512 of the Digital Millennium Copyright Act (17 USC 512).  That section provides a "safe harbor" for website operators who take down allegedly copyrighted material upon request by the copyright holder.  There are some technical requirements that must be met to comply with the safe harbor provisions, and it is worth learning about them from the Copyright Office's website.

Speak Back Sections

Libel law developed largely as a consequence of a defamed individual not having a podium to respond to unfounded allegations. Arguably, the Internet provides numerous sites for responding to defamatory claims.

A site operator may want to create a "free speech zone" where responses can be posted regarding a person or issue being discussed by regular contributors. The existence of such a forum may give a court sufficient comfort that the ability to access the same audience means that the site shouldn't be held liable for defamatory content.

Liability insurance

One of the issues that commonly arises in any discussion about independent journalism start-ups is liability. Working for a large news company, journalists feel protected against libel lawsuits since they corporate counsel on their side. But when you go it alone, you’re completely exposed.

David Ardia, the director of the Citizen Media Law Project at the Berkman Center at Harvard acknowledged the cost concerns in a Journalism 2.0 blog post, but is strongly in favor of insurance:

"I think liability insurance is very important," Ardia said. "While legal counsel can help to fend off liability, if a publisher loses the lawsuit, they will be on the hook for damages.  Unfortunately, most insurance carriers price their insurance products well above what a small journalism startup can afford."

So one option is the “high deductible approach:” find a good lawyer to use if you get sued instead of paying monthly premiums for liability insurance. If you’re just starting out, this might be your only option.

Ardia added that this issue is covered in detail in the center’s legal guide, which is a must-visit site for anyone launching a new journalism start-up:  http://www.citmedialaw.org/legal-guide/finding-insurance.

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