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Wednesday, January 29, 2020
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AUG 02 - Conducting Business Online Requires 21st-Century Legal Protections

Special to the Savannah Business Report

Companies have widely adopted the Internet as a business forum over the past two decades, and many use the medium for advertising, sales and public awareness campaigns. However, not all companies conducting business online fully understand or appreciate the various legal issues and concerns relating to doing business online, including those relating to potential copyright and trademark infringement.

Milton L. Petersen, a partner at Savannah-based HunterMaclean who works in the law firm’s Information Technology Practice Group, said every company with an online presence should at least post a set of terms of use on its Web site, and most also should include a privacy policy.

The terms of use govern how end-users may use the Web site. In addition, Petersen said the terms of use should include provisions that protect the content of the Web site and the related intellectual property rights.

“Be sure that your company has the necessary rights to make publicly available any content and materials that it posts online,” he said. “In addition, be aware of how easy it is for others throughout the world to copy and reuse in impermissible, unexpected or unintended ways any content or materials that you make available online.”

The terms of use should establish just how the content of the Web site may and may not be accessed and used. Petersen also suggested that companies can protect and limit re-use of the site’s content by including watermarks in images or copy-protecting certain files.

Terms of use also might need to include provisions for user-submitted content. “If your Web site allows users to submit or post content, then you should include provisions in the terms of use that give your company the necessary rights to that user-submitted content,” he said.

In most cases, the terms of use should disclaim any obligation or responsibility with respect to user-submitted content or for monitoring or removing user-submitted content. The terms of use also might forbid users from submitting unlawful, offensive or harmful content and from engaging in other types of improper behavior with respect to the site and other users of the site, Petersen said.

“If user-submitted content will be posted on your site, you may want to consider registering an agent with the United States Copyright Office and designating that agent in the terms of use as the person to contact if it is believed that copyrighted material is being used on the site without permission,” he explained. “This can help limit the damages your company might suffer.”

If a Web site handles e-commerce transactions, the company should include on the site the terms that govern purchases made through the site. Petersen said companies should design the purchase or sales processes appropriately to create valid and enforceable “click-through” agreements. Security issues are also extremely important.

The terms of use may need to change over time and should therefore include a conspicuous statement giving you the right to update and amend them periodically, indicating that continued use of the site indicates consent to any updated or amended terms. Most terms of use for online sites should also contain basic provisions such as legal disclaimers, limitations of liability, indemnification, governing law and dispute resolution, as well as various other provisions.

“To help ensure that terms of use are enforceable, be sure to include links to them (and to the privacy policy, if there is one) on each page of the site,” Petersen said. “These links are commonly included in a footer at the bottom of every page. To help protect the intellectual property relating to site content, include a copyright notice where these links are posted.”

Finally, companies should consider including a privacy policy if the site collects any information – especially any personal or individually-identifiable information – from users or provides users with the capability to submit information.

“Companies need to be aware of potential risks and concerns associated with having an online presence and take appropriate steps to protect themselves,” Petersen said. “These are just a few of the legal aspects related to doing business online. The future will bring even more, and more complicated, issues and concerns.”

Hannah Byrne, founder of Savannah’s full-service design firm Smack Dab Studios, said she has noticed that companies are becoming more aware of how easy it is to steal content from Web sites and that some businesses are tracking down and confronting offenders. She said businesses can prevent users from right clicking and copying content, but users still can take a screen shot of the page and copy content that way. “When it’s out there, it’s out there,” Byrne said.

Byrne suggested that companies include photo credits with any picture they post to protect the rights of the photographer and also make sure that any photo they post is being used with permission. Recently, a client of hers found out that their in-house designer had inadvertently used a photograph from a stock photo company without permission. The company’s Web designer had altered the photo by cropping it and changing it to sepia tone, but the stock photo company still recognized the image. Byrne’s client ultimately had to remove the photo from the site and pay a fine.

“I have no idea how they found the photo,” Byrne said. “I think people are cracking down more on the usage of images because it is so easy.”

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