Using Legal Notices at Your Web Site
by Lance Rose, Esq.
Should a Web site impose certain rules on its visitors, either through notices or a user contract? There are certainly a lot of reasons why a site operator may want to do this, including:
- limiting the site operator's liability for possible harmful or illegal materials at the site (like virus-ridden or buggy software, incorrect data, infringing materials, and libelous materials);
- discouraging visitors from doing anything illegal at the site (like uploading pirated software);
- clearly specifying who owns the various intellectual properties at the site, including any that may be contributed by visitors;
- correcting any misimpressions about the site that visitors may have picked up from the press or word of mouth; and
- warning users of any particularly or unusually dangerous conditions at the site.
Despite these good reasons and others, some web sites do not attempt to subject their visitors to system rules or notices (except the ubiquitous copyright notice). This is not necessarily a bad thing. If the site is no more than the electronic equivalent of a traditional print publisher or broadcaster, then its visitors might resist attempts to make them agree to site rules. We don't sign contracts to read the morning newspaper or watch TV, so do we really need to agree to special rules just to read or watch the same material on the Web?
Of course, such operators will remain exposed to the legal risks described above and others. Larger, deeply funded sites may find this no problem. They can reduce their risks the same way as the older mass media, by buying extensive "publisher" type insurance and having their lawyers readily available. Smaller sites who avoid setting up rules for visitors may face a harder choice. Insurance for smaller online systems is beginning to come available through organizations like the Association for Online Professionals (http://www.aop.org), but some site operators may find the premiums rather pricey.
Many Web sites do feel comfortable posting notices and disclaimers for visitors to read. Such notices might be found at various different places within a Web site. For instance, they can be posted on a page shown to visitors before they even enter the site itself. This can be seen in some sites offering professional advice (such as information from doctors, lawyers, or CPAs), regulated activities (such as securities offerings or trading), and especially activities of questionable legality (like gambling, or offering adult materials).Notices are often presented to site visitors in a special dedicated area within the site, whose existence is highlighted in some fashion on the home page, an index page, or on a navigational bar or other device. The area might contain notices on a range of legal topics, such as those described at the beginning of this article. It can also be used for matters of etiquette and the behavior expected of users, which can range from reserved to wild, depending on the site operator's tastes.
Finally, notices can be posted at the points within the site where they best convey the site operator's message. For instance, if the site offers software downloads, a warning about computer viruses can be posted on the download page. Similarly, if the site operator does not want to guarantee the privacy of visitor e-mail, a notice disclaiming privacy can be given to visitors in the same place where they are given the opportunity to send an e-mail message. Such local posting, done properly, can help Web site operators reduce their legal risks. If a visitor sends private e-mail to the site undeterred by the operator's warning that it is not private, and the message somehow ends up on another public Web site somewhere, that visitor could hardly claim with a straight face that the site operator violated his privacy rights.
Notices, therefore, can be useful, but they also have a serious limit: a mere notice cannot place Web site visitors under any legal obligations to the site operator. Only a real, agreed contract with visitors can do that. This is because notices and disclaimers send messages in one direction only -- from site operator to visitor -- and do not obtain any agreements or promises from visitors. They function mainly to tell visitors that they proceed at their own risk, either by giving warnings or information about the site, or by stating that the site operator does not guarantee that all data on the site is accurate, complete, private, legal or safe. In contrast, site operators who use a full-blown contract can obtain visitor agreement to many other valuable terms, like limiting the maximum amount for which the visitor can sue the site operator; naming a single state convenient to the operator as the place where lawsuits might be held; and establishing certain information on the site as confidential and not to be disclosed by the visitor to others, to name just a few.
If a site operator does not use sufficient common sense in bringing notices to visitors' attention, then his notices may not even fulfill their limited function of effectively warning visitors. For instance, a site operator may place a notice warning of virus dangers in downloadable software nowhere near the download pages, but instead in a separate area accessible only through a single, low-profile link on a less-visited page on the site. This reduces the chances that visitors downloading the software will see the notice first. If a legal problem arises, the site operator may not be able to point to its half-hidden notice as a basis for being excused from legal responsibility.
Another problem out in the Web is that some site operators blindly copy notices they find at other sites, without figuring out whether those notices really make sense for their own sites. Notices and disclaimers taken from large corporate sites (who presumably have their notices reviewed by high-powered lawyers) and grafted on to other sites will not necessarily protect those sites, even if the notices are perfectly worded. For example, the operator of a web site selling jewelry to the public may think it a good idea to simply copy the notices used at the site operated by its wholesale jewelry supplier, a large and savvy company. However, those notices will likely leave out the kinds of statements required by law for sites that sell to consumers, since consumer-oriented notices would appear at a wholesale-only site.
In conclusion, notices are okay, but full-fledged visitor contracts are necessary when site operators want to cover all aspects of their legal relationships with their visitors. We will look at visitor contracts soon, in part two of this article.
Lance Rose (elrose@well.com), an attorney and writer currently practicing law in Scottsdale, AZ, has worked in the computer and information law fields for over 15 years. He is the author of NetLaw: Your Rights in the Online World (Osborne/McGraw-Hill), operates the NetLaw web site at http://www.netlaw.com, and has written extensively for print publications including Wired, Boardwatch Magazine, and Internet World.