Used with permission.
As many associations and organizations feel the need to jump into "cyberspace" it is important to understand the legal issues involved before making that leap. Following is a checklist of considerations which should be addressed during the process of establishing a web site. These general considerations are intended to provide an overview of the legal issues involved. As always, legal counsel should be sought to address specific issues.
Service Provider Considerations
The service provider is the company whose computers will host your web site. Visitors to your web site will actually be contacting the service provider's computer and the Internet addresses for your pages will direct them to the space you have been allocated on the service provider's computer. Selection of service provider may be based on the same type of considerations that go into the selection of any vendor with whom your organization does business. The following general and Internet-specific issues should be addressed in a formal agreement with the service provider.Agreement with service providerAre the services to be provided fully described?
Are the technical requirements clear to both parties?
What are the rates and how will they be calculated?
Under what circumstances will there be a right of termination?
What materials are to be provided by the site owner?
What is the term of the agreement?
What security measures will the provider have in place?
Have measures been taken to protect the customer's confidential materials?
Have measures been taken to protect the customer's proprietary materials?
Does the agreement require the provider to indemnify and defend the customer from liability resulting from the provider's conduct?
What will be the liability of the provider for breach of the agreement?
Obtaining a domain name
Will the provider be obtaining a domain name for the customer?
Who will own the domain name?
Does the chosen domain name infringe on any existing trademarks?
Web Site Developer Considerations
The web site developer will create the actual images that visitors to your web site will see. The developer will also put these images into a format that can be loaded onto the service provider's computer and function properly as a web page. The key aspects of the relationship with the developer will be ownership of the product of the developer's creative efforts and the assurance that the final product projects the image desired by the customer. The following issues should be addressed in a formal agreement with the web site developer.
Agreement with developer
Are services to be provided fully described?
What are the rates and how will they be calculated?
Who will have ownership of development materials such as storyboards?
Who will have ownership of the developer's final product?
What will be the copyright status of the final product?
Are necessary assignments of rights provided for in the agreement?
Will the final product be a "work made for hire?"
Will the developer agree not to disclose any of the customer's proprietary and confidential information?
Will the developer be prohibited from using information or materials developed for customer in projects for other customers?
Does the developer promise to refrain from using material that infringes on the copyrights or trademarks of others?
What provisions are included to monitor the developer's performance?
Does the customer have the right to approve or reject the final product?
Under what circumstances will the customer have a right of termination?
Does the agreement require the developer to indemnify and defend the customer from liability resulting from the developer's conduct?
Will the developer's insurance be sufficient if he/she is called on to indemnify and defend the customer?
For what ongoing maintenance will the developer be responsible?
Will the developer create regular updates?
Will the developer make revisions to the existing materials?
Will the developer be responsible for repairs to existing materials?
Your ongoing presence on the Internet will be the content of your web site. Due to the ease of duplication and dissemination of digital information, there are heightened risks of incurring liability. The following issues should be considered when determining what content to include on a web site.
Sources of liability
Are others' trademarks used in a possibly infringing manner on the site?
Could chosen domain names infringe on others' trademarks?
Are others' trademarks used in metatags at the site?
Is copyrighted material improperly used on the site?
Will others' web pages be framed at the site?
Is the voice or likeness of an individual used on the site without that individual's permission?
Are there any defamatory materials on the site?
Are there any obscene materials on the site?
Will hyperlinks to other web sites be included on the site?
What will be the policy for allowing links to sponsors' sites?
What will be the policy for allowing links to members' sites?
Could there be vicarious liability for the content of sites that are linked (vicarious liability results when there is a right and ability to supervise and a financial interest)?
Will the linked site owners be required to indemnify and defend you from liability resulting from their conduct?
Have the possibilities of violating antitrust laws been addressed?
Have the truth in advertising laws been considered?
Ownership of content
Are proper copyright notices used?
Are the rights to copy, to prepare derivative works, to distribute publicly, to perform publicly and to display publicly addressed concerning the materials used at the site (e.g., Has the site owner acquired the right to publicly display someone else's copyrighted work at the web site?)?
Will the site include message boards?
Have policies been established concerning the use of the message boards?
Has the possibility of liability of the site owner for conduct on the message boards been considered?
Will the site include e-mail?
Have policies been established for use of e-mail?
Uploading and downloading
Will uploading or downloading of software, text or images be allowed?
Have policies been established for the uploading or downloading of software, text or images?
The ultimate goal of establishing a web site is to have users visit your site. Users, however, may also be the individuals who react unfavorably to the content provided or who use the site in a way that could be damaging to the owner or to other users. The following issues should be considered when deciding which users will be able to access the site, how they will access the site, and what they will be able to do at the site.
Has a user agreement been developed?
Does the user agreement require the user to indemnify and defend the site owner for any damage and/or liability resulting from the user's conduct?
Will access to the site or portions of the site be limited?
Will passwords be used to access the site or portions of the site?
Right to copy or print content
Will users have the right to copy or to print content from the site?
As with any undertaking of a not for profit organization, the possible tax ramifications of activities related to your web site should be considered.
Will the inclusion of sponsors or advertisers on the site result in unrelated business income?
Will sponsors be recognized with an acknowledgment or a call to action?
Are the Internet activities within the site owner's exempt purpose?
A web site has the unique ability to be reached by computer users anywhere in the world. The following issues relating to international accessibility should be considered.
Has the possibility of international access been considered?
Has the possibility of liability for violating the laws of other countries been considered?
Risk Management Considerations
The primary purpose for a legal evaluation of Internet activities is to limit the possibility of incurring civil or criminal liability as a result of those activities. The following considerations have been raised where appropriate throughout this check list. It is important that these risk management strategies are implemented in every aspect of your Internet activities.
Are any unintended representations or warranties made?
Do all agreements require the other party to indemnify and defend the site owner for liability resulting from the conduct of the other party?
Does the site owner's insurance include coverage for Internet related losses?
Does the site owner request to be named as an additional insured on vendor policies?
Are disclaimers used where appropriate on the web site?
Has a policy been established for monitoring conduct on the web site?
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Barbara Dunn is an attorney with Howe & Hutton, Ltd., a law firm with offices in Chicago, Illinois, Washington, D.C. and St. Louis, Missouri, specializing in the representation of nonprofit organizations -- most particularly, trade associations, professional societies, public charities, educational organizations, foundations and related entities. The firm serves as general counsel to Meeting Professionals International and the Association Forum of Chicagoland, among hundreds of other nonprofit organizations.
Jeff Friedman is an attorney formerly with Howe & Hutton, Ltd.