Website-law.co.uk

“Please do whatever necessary to make sure I don’t get sued or fined!”

Clients sometimes assume that the instruction of a legal adviser amounts to an insurance policy against legal risk. But whilst proper legal advise should reduce a business’s legal risks, it will not eliminate them.

There are, I think, five main reasons why web-based businesses must live with legal risks.

First, the law changes all the time. This is especially true of “internet law”. Sometimes these changes can be easily anticipated, but sometimes not.

Second, good websites are regularly updated; and few web publishers take legal advice on everything they publish.

Third, user-generated content can give rise to liabilities which may be beyond the control of the web publisher.

Fourth, the law is often much more uncertain than we would like. For example, the special defences under the E-commerce Regulations, which from a risk management perspective may be considered crucial to the operation of many websites, are of uncertain scope.

Fifth, legal advisers sometimes get things wrong. Whilst you may well be able to sue a negligent legal adviser, that is not the same things as an insurance policy!

The publication of website content – whether textual, audio, video, or other content – can be unlawful in two main ways.

It can breach the criminal law; and it can give rise to civil liability.

Breaches of the criminal law may result in prosecution, and a successful prosecution may lead to a fine or even imprisonment.

Civil liability is different. Where content gives rise to civil liability, the person (or company or other organisation) that has suffered as a result of the publication may have a right to bring proceedings. The remedies in such proceedings will usually be damages (or an account of profit) and/or an injunction. A successful claimant will also expect most of their legal costs to be met by an unsuccessful defendant.

Examples of criminal (or potentially criminal) content include:

- Obscene or indecent material
- Material published in contempt of court
- Material published in breach of data protection, racial or religious hatred, or official secrets legislation

Examples of content that may give rise to civil liability include:

- Defamatory material
- Material infringing another person’s copyright (or other intellectual property rights)
- Material infringing another person’s rights of confidence or privacy

Those responsible for moderating internet forums, blog comments or other website features involving user generated content should be at least passingly familiar with each of these areas of potential liability.

Many websites are inherently risky; indeed, some of the web’s most famous sites are built upon technologies and business models which test the boundaries of the law.

Examples include eBay which, despite a vigorous IP enforcement programme, has over the years facilitated a massive online trade in pirated products; and YouTube, which still hosts huge numbers of copyright-infringing films. Even Google’s right to cache websites for the purpose of search has been tested in the courts.

Is your site a risk?

In practice, legal risks must be weighed against the practical costs of countering them. It’s not usually worth spending time on research or money on professional advice unless the risks are real.

In most cases, non-commercial websites present less risk than commercial websites. There are at least two main reasons for this. First, lawsuits cost money, and financial damages may be hard to recover in a non-commercial context. Second, commercial activities (including contracting) tend to be much more strictly regulated than non-commercial activities.

Questionnaire

The questions below should help you decide whether your website presents any significant risks.

Do you collect personal information (e.g. names, addresses) about your website visitors or customers via your website?

If your answer to this question is “yes”, you should ensure that your website complies with data protection legislation. If you have a business website, you will probably need to apply for a data protection registration. A failure to comply with data protection legislation could lead to a civil claim and/or a fine from the Information Commissioner

Do you advertise or sell goods or services over your website, or accept payments over your website?

The advertising and sale of goods and services to consumers in particular is heavily regulated. I usually recommend that websites which are expected to give rise to a sales of goods and services should be subject to legal review.

Do you allow users to edit content on a your site?

As webmaster, you can sometimes be liable in respect of content created by your users. Many websites today allow user-created content, even if only as comments on a news story or blog entry. If your site allows user-created content, you need to consider carefully whether there is a real risk of a complaint or lawsuit against you.

Does your site contain gossip, or other comment upon individuals?

Gossip tends to be defamatory. The UK’s strong defamation laws mean that it can be difficult to defend a defamatory comment, even if it’s true!

Is your site a protest site?

Protest sites inevitably carry a higher legal risk than most other kinds of sites, for the simple reason that they often upset wealthy and/or powerful people or organisations.

Does your site incorporate content (text, images, sounds or video) created by others?

Depending upon the sources of your content there may, in these circumstances, be copyright or other intellectual property rights issues with your site. You should ensure that third party content is properly licensed.