Just about every business client that we counsel maintains an active website. These help drive user engagement, deliver news and updates on interesting products, and drive significant new business. Depending on how the website is curated, however, that extra business may end up being for us greedy lawyers and not for our well-intentioned client. Some of the most common issues we see are:
- ADA Compliance – As you may know from your brick-and-mortar locations, the American with Disabilities Act (the “ADA”) requires all “places of public accommodation” to be accessible to those with physical limitations. What you may not know is that websites are generally viewed as “public accommodations.” This means that your website needs to make reasonable allowances for people with physical limitations, most notably those suffering from visual impairment (so make sure that your website contains text-reading functionality) and hearing impairment (make sure that your website contains subtitles for audio elements). Initial ADA violations can carry penalties of $75,000, and there is a growing cottage industry of attorneys that fish small business websites for notice of potential violations and quick settlements.
- Privacy Laws – The years-long rollout of the European Union’s General Data Protection Regulation (the “GDPR”) is largely complete. While you may think that, for instance, as a small retail business based in the United States, your website would be exempt from the GDPR, you might be in for an unfortunate surprise. The GDPR applies to the website of any company that potentially (i) offers goods and services to an EU citizen, or (ii) monitors the behavior (that is, collects data) of any EU citizen (which is to say, nearly every company). The GDPR imposes several specific obligations on businesses that host websites, largely centering on transparency with the use of visitor data. The penalties for violations are measured as a percentage of your business profits and can be intimidating. Be sure that your privacy policies and terms and conditions contain the proper disclosures and opt-outs. Further complicating matters, California and Virginia have recently implemented their own privacy laws, and Colorado’s version will follow suit in July. Although these laws are not identical, similar strategies can keep you on the right side of each.
- Copyright Trolls – While copyright law is over three hundred years old, and copyright trolls (entities that file lawsuits based on weak rights and questionable claims) only a few days younger, the widespread adoption of image-searching software has turbocharged copyright trolling directed towards throw-away images on websites—truly the world is their bridge. The incentives of copyright infringement are such that even innocent acts of infringement will set you back several thousand dollars, so make sure everything you display on your website is original work or subject to a valid license.
As always, we at Milgrom Law are happy to review your website to ensure full compliance with the law. While nobody (except my colleagues) enjoys looking at terms of service, an hour of prevention is worth ten hours of cure.
