Three Things You Shouldn't Do When Creating a Website, So As to Avoid Legal Trouble

Dealing with permissions, privacy, and other issues on your website.

There are many reasons you might want to create a website. Perhaps it is a personal blog; perhaps it is a website for a new business; or perhaps it is a website for your local town. There are many legal ramifications to starting a website that people forget to consider. In particular, here are three pitfalls to avoid:

  1. falling to use a written development agreement
  2. failing to obtain needed permissions, and
  3. violating someone's right to privacy or publicity.

1. Failing to Use a Written Development Agreement

Many people who want to develop a website actually hire someone with expertise to do the coding and design. You might want to give the broad directions, on the branding, the content, the photos, and so forth. But you may not want to get into the details of the HTML. Remember to get the agreement with the Web designer in writing. There are too many legal issues involved to leave it to a handshake. For example:

  • Cost. Are you paying the designer by the hour, or on a lump sum? Is payment due up front, or at the completion of the assignment?
  • Specifications and timelines. You’ll need to reach agreement on the details of the website and when work should be completed and launched.
  • Warranties and indemnity. Both parties will need assurances that the work will not create legal problems such as claims of copyright infringement or libel.
  • Who owns the work. You’ll need to determine who claims copyright ownership of the site’s design and appearance. Ideally, the designer will voluntarily assign any copyright he or she may have in the site to you or your organization.
  • Objections and approvals. You’ll want a simple system for approving (or objecting) of drafts of Web pages.
  • Termination. Both parties will want an escape hatch in case things turn sour during the development process.

Do not make the mistake of leaving these issues to an oral agreement. Draft a short contract (probably just a few pages) so that both you and the designer have clear responsibilities and expectations before work begins.

2. Failing to Obtain Needed Permissions

You may need to obtain permission to use materials protected by copyright, whether it be text, photos, video and film clips, software, or music. Obtaining permissions for a Web or software project can involve tracking down many different copyright owners and negotiating licenses to use their material.

You might be tempted to use copyrighted material without permission if you are unable to locate the copyright owner or simply don’t have the time, money, or staff to obtain numerous permissions. This is a mistake. If the copyright owner later discovers what you’ve done, at the very least you will be liable for the reasonable value of the use. If the material is not terribly valuable, this won’t amount to much, and the owner will probably accept a small permission fee.

On the other hand, if the material is valuable, you could find yourself in big trouble. At the very least, you’ll be liable for a substantial permission fee, perhaps more than you’d be able or willing to pay.

Instead of settling for a permission fee, the copyright owner might sue you for copyright infringement. In this event, you could face substantial damages. The copyright owner you’ve stolen from could ask the court for the reasonable value of the use and the amount of any economic loss caused by your theft; or, if the material has been registered with the U.S. Copyright Office, the copyright owner could ask for special statutory damages, which can range up to $150,000 (it’s up to the judge or jury to decide how much). In some cases, you could even be subject to criminal prosecution. And don’t forget, you’ll be paying your attorney handsomely, regardless of how the case turns out.

3. Violating Someone’s Right or Privacy or Publicity

Use of photos, film or video footage, or audio recordings can constitute a breach of the privacy or publicity rights of the people whose likenesses are used. You’ll need to consider whether you must obtain releases from persons whose images or voices are used.

The right to privacy is simply the right to be left alone. The law protects a person from humiliation, embarrassment, loss of self-esteem, or other injury to her sensibilities caused by the following types of activities:

  • using a person’s name, likeness, or voice for commercial purposes, without authorization—for example, in an advertisement
  • entering or observing a private or secluded area without consent—for example, spying on a person’s home or office without permission to take photographs
  • publicly displaying an image that shows or implies something embarrassing and untrue about someone—for example, using a picture of an uninfected person in a work about sexually transmitted diseases in a way that implies that the person has such a disease, or
  • publicly disclosing true, but private and embarrassing facts about a person that are of no legitimate public concern—for example, displaying film footage of a person hugging someone other than his or her spouse.

These privacy rights belong primarily to private individuals. Public officials (persons who hold important elective or appointed offices) and “public figures” have little or no right of privacy for acts relating to their public life. This includes not only people we normally think of as “celebrities”—film and TV stars, rock stars, sports heroes, famous business tycoons, and so forth—but lesser-known individuals involved in public affairs—for example, the heads of the ACLU and NRA.

A person’s privacy rights cease when he or she dies. Thus, there are no privacy issues presented in using old photos or archival or newsreel footage of people who are dead.

The right of publicity is the right to control when and how one’s name, voice, or likeness may be used for purposes of advertising or trade—for example, to advertise or sell a product or service. Public figures—famous athletes or film stars, for example—can earn substantial sums by endorsing products and appearing in commercials. No one would pay for an endorsement if the right of publicity were not legally protected. Only human beings have a right of publicity; corporations, firms, and institutions do not. Unlike the privacy rights discussed above, the right to publicity continues in some states for many years after a celebrity’s death.

The rights to privacy and publicity are not absolute. The First Amendment to the U.S. Constitution guarantees freedom of speech and of the press. The First Amendment gives priority to the public’s right to know about newsworthy events of public significance. Courts have held that a person’s name or likeness may be used without consent where it is done for educational or informational purposes. This enables the news media to publicly disclose a person’s name, likeness, or other characteristics without permission for newsworthy and editorial purposes.

Conclusion

Building a website can be fun, exciting, and sometimes profitable. Just be sure to remember the legal ramifications of your actions. That starts with a solid contract with your web developer, to ensure that both parties have clear expectations around payment and responsibilities. It also includes being careful about the content you put onto the website. Whether it violates someone’s copyright in a photo, or a right of privacy, you could find yourself facing legal liability.

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