Top Ten Legal Oversights For Website Design That Can Hurt Your Business

Could your website get you sued? The answer is “Yes!” Even if you don’t slander anyone in your blog or steal anyone else’s work, what’s on your website — or maybe what’s NOT on it — could get you sued. Understanding and complying with the legal requirements for websites is crucial to avoid potential legal issues.

In this guide, we’ll explain some of the most common regulations your website will need to adhere to as well as ten of the most common legal faux pas you should avoid.

Understanding Website Laws and Regulations

Navigating the complex landscape of website laws and regulations is crucial for website owners to ensure legal compliance and avoid potential pitfalls. These laws can vary significantly by country, state, and industry, making it essential to stay informed about the latest requirements.

In the United States, website owners must adhere to federal and state laws, such as the Americans with Disabilities Act (ADA), the General Data Protection Regulation (GDPR), and the California Consumer Privacy Act (CCPA). Each of these regulations has specific mandates that must be followed to protect user data and ensure accessibility.

For instance, the GDPR, which applies to any website collecting data from EU residents, mandates strict data protection measures and transparency in data processing. The CCPA, on the other hand, focuses on giving California residents more control over their personal information collected by businesses.

Staying compliant with these regulations not only helps in avoiding hefty fines and legal actions but also builds trust with your audience. Regularly reviewing and updating your website’s policies and practices in line with these laws is a proactive step every website owner should take.

Americans with Disabilities Act (ADA) and Section 508

The Americans with Disabilities Act (ADA) and Section 508 of the Rehabilitation Act are pivotal in ensuring that websites are accessible to people with disabilities. The ADA prohibits discrimination against individuals with disabilities in all areas of public life, including online spaces. This means that websites must be designed and maintained in a way that allows equal access to all users, regardless of their physical or cognitive abilities.

Section 508 specifically requires federal agencies and any organization receiving federal funding to make their information and communication technology (ICT) accessible. This includes websites, which must comply with the Web Content Accessibility Guidelines (WCAG). These guidelines provide a comprehensive framework for web accessibility, making web content more accessible to people with disabilities. The legislation covers aspects like text alternatives for non-text content, keyboard accessibility, and providing sufficient contrast for text.

For website owners, ensuring compliance with the ADA and Section 508 involves conducting regular accessibility audits and implementing necessary changes. This might include adding alt text to images, ensuring that all functionalities are accessible via keyboard, and providing transcripts for audio content. By adhering to these guidelines, website owners not only comply with legal requirements but also enhance the user experience for a broader audience.

HIPAA Requirements for Health Websites

Health websites have a unique set of legal requirements to adhere to, primarily governed by the Health Insurance Portability and Accountability Act (HIPAA). HIPAA sets stringent standards for protecting patient health information (PHI), ensuring that sensitive data is kept secure and confidential. For website owners in the healthcare sector, this means implementing robust data security measures such as encryption, access controls, and regular security audits.

HIPAA also mandates that health websites provide clear information to patients about their rights over their health data. This includes the right to access their data, request amendments, and restrict certain disclosures. Ensuring that these rights are communicated effectively on the website is crucial for compliance.

In addition to HIPAA, health websites must also consider other relevant regulations like the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). These laws further emphasize the importance of data protection and transparency in data collection and processing personally identifiable information. By staying compliant with these regulations, website owners can protect themselves from legal repercussions and build trust with their users.

By following these guidelines and regularly reviewing their compliance status, health websites can ensure they meet all necessary legal requirements and provide a secure, trustworthy environment for their users.

10 Common Legal Pitfalls To Avoid On Your Website

If you want to check that your website adheres to legal requirements, make sure that you’re avoiding these ten common problems.

1. No Website Disclaimer

Odds are, on your website, you probably provide information to your readers or users of your products. That means you need a disclaimer. Problems can arise when your website makes someone reasonably believe something, and that belief causes them damage. It could be financial damage, physical damage, emotional damage, and so on.

For example, on our web pages, you’ll find a disclaimer about the advice we provide. While we do our utmost to provide up-to-date information and tips about running your business, we’re not a law firm or a tax firm, and we need to be up front about that with our readers. That’s why we have a disclaimer limiting liability for our site.

The Solution: Include thorough (but not excessive) disclaimers

Not every website needs a disclaimer, while others will need very broad and detailed disclaimers. It can be easy to take a “better safe than sorry” approach and plaster nine or ten disclaimers at the bottom of your page. That’s probably unnecessary.

Instead, as a site owner, take the time to draft proper disclaimers that cover the information contained on the website and the information you collect. Make sure your disclaimers are comprehensive enough but concise to help protect against legal issues. Get legal counsel if you’re not sure whether you need one or not.

2. Privacy Breaches

You should have a company privacy policy, and you need to inform your website visitors about your privacy policy to protect yourself in the event of privacy breaches. This policy should clearly explain the information you collect, how it’s used and stored, and so on. Not upholding this policy can have severe repercussions under today’s privacy laws.

Privacy breaches can go undetected, and they have the potential to devolve into PR nightmares with hefty financial repercussions.

The Solution: Post a detailed privacy policy

You company privacy policy should be included on your website, dictating how the information you collect is used in compliance with data privacy laws. It’s very difficult to broaden your privacy policy after information has been collected, so make sure your policy isn’t too restrictive. A properly worded policy will be sensitive to how collected personal information could be used in the future (even if it’s not used now by the business). Take care (and adequate legal counsel) that your privacy policy complies with all legal and regulatory restrictions for your business type.

3. Intellectual Property Infringement

Infringing on someone else’s intellectual property can have hefty consequences, from a simple injunction to a multi-million dollar judgment. In the case of a website, infringing on a patent, copyright, trademark, or trade secret can often lead to the offending site being judicially removed from the web. Understandably, that’s a scenario you’d rather avoid. If you rely on your website for sales and communications, losing your site could be catastrophic.

Or let’s say that you find out that your site infringes on someone’s intellectual property, but you don’t do anything to correct it. If that happened, the court could award punitive damages to the intellectual property owner, maybe even making you pay the owner’s attorney fees, too.

The Solution: Educate your stakeholders about intellectual property policies

Everyone in your company needs to be acutely aware of the proper use of trademarks, copyrighted material, and patentable processes. Help your employees (especially your web designers) by adopting a detailed policy about the use and dissemination of intellectual property.

Be absolutely sure that the intellectual property on your site is something you own or something you’ve properly licensed. No one should ever assume that certain material is in the public domain or corporate property without detailed documentation to that effect.

That said, even a good intellectual property policy can’t protect against ever misstep. Have a contingency plan in place for what to do if you ever get notice you’ve infringed on intellectual property. These policies might dictate how to pay licensing fees to correct the infringement, how to replace the offending content, and so on. It’s absolutely critical that you respond to any allegations of infringement promptly, so having a policy in place can help you address the problem quickly and reduce your liability from the infringing material.

4. Security Breaches

Lapses in security can translate into damages many times the value of the entire company. Security breaches may arise from hackers, who do it for fun or profit. The most common security breaches, however, result internally from disgruntled or careless employees. For example, a remote worker might leave their work laptop open at a coffee shop while they stand in line, exposing their company’s secrets to prying eyes.

The Solution: Establish a security policy

Even if a security policy isn’t legally required for your business, it’s highly recommended to have one. This policy can’t be comprehensive (after all, it’s impossible to predict every single way your company information could be compromised), but it should be thorough. A good policy dictates the exact steps your business should follow if your security is breached, including remedial protocols and how to prevent breaches to begin with.

5. Failure to Protect Intellectual Property

Most online retailers, software companies, and companies with strong brand identities have one thing in common: their intellectual property is their most valuable asset. Intellectual property could include your trademarks, proprietary technology, patents, or even your customer lists; without that intellectual property, you could lose your ability to stay in business.

It’s vital to protect your intellectual property thoroughly.

The Solution: Do your due diligence to protect intellectual property assets

Due diligence is essential: find out what intellectual property you have and verify who owns it. You might find yourself surprised at who owns (or at least has some claim to) certain assets, such as your company website, which could be owned by the web developer. You may need to take some time to transfer rights for the website contact to yourself.

As another example, let’s say you hire an independent contractor to help you develop a product or write content for your website. If you don’t stipulate who owns the intellectual property that you create together in their contract, you could find yourself in trouble later on. Be sure to keep good contracts in place, drafted according to your company’s intellectual property policies.

And of course, whenever intellectual property rights are transferred, be sure to draft documentation for it, and keep that documentation within your company records.

6. Breaking the Law

Odds are, you aren’t intentionally or knowingly breaking the law on your website. But there are hundreds of laws that govern websites (many of them industry-specific): COPPA, which applies to websites that knowingly collect personal information from children under 13, Graham-Leach-Bliley, HIPAA, or international conventions such as the EU Directive are just a few regulations your website might need to comply with. Failing to abide by rules for website accessibility and other regulations could lead to drastic penalties.

The Solution: Set up an internal regulatory compliance committee

Any company that relies on its online presence should have a compliance committee in place. This group is responsible for knowing the regulations that apply to the company’s site and reviewing the site regularly. With these reviews, the compliance team may be able to catch any problems before they cause penalties.

Some legislation will have ambiguities, though, which can make it hard to comply with the regulations perfectly. That’s why it’s also a good idea to have legal counsel to ensure you’re doing your due diligence with compliance.

7. No Coordination

Have you ever thought a teammate was tackling an item on your company’s to-do list, only to realize later that they thought you were doing it? Often, this lack of coordination doesn’t have severe consequences, but it can if the task relates to your website compliance or online activities.

The Solution: Develop and follow a chain of command

Companies must develop a coordinated chain of command for who handles what task, and when. You’ll want written reporting procedures and protocols to address IT issues on a timely basis. It can also be helpful to designate a Chief Information Officer (“CIO”) to coordinate directly with your board of directors, reducing critical delays and failures associated with online or IT issues.

8. Bad Contracts

What’s worse than not having a contract in place? Using a contract that’s piecemealed together from preexisting contracts for other purposes. Poorly drafted contracts can introduce a host of problems, especially for intellectual property or security policy purposes. You could find yourself wracked with lawsuits you thought you’d protected yourself from, losing your intellectual property assets.

The Solution: Use the right contract for the job

Don’t cut corners with contracts. Have an outside attorney help you draft comprehensive contracts to prevent any intellectual property from slipping through the cracks of legal loopholes. While it might be tempting to copy-paste old contracts to save money, you’ll want to avoid that at first. Instead, work with your attorney over time to develop “template” contracts for different purposes. Over time, you’ll build a portfolio of contracts that you can use to adequately protect yourself.

There will, of course, be unique circumstances where the terms and conditions of your template contracts don’t quite fit your needs. That’s when you’ll need to enlist your attorney’s help again.

While it might seem expensive to get legal counsel for these contracts, you’ll likely save yourself money in the long run. After all, well-drafted contracts can help you avoid lawsuits or the even bigger expense of losing your intellectual property down the line.

9. Losing the Proverbial Farm

Your business is your farm, and if you’re a business that relies on intellectual property, a single patent or trademark could be the difference between your success or failure in the marketplace. Almost anything could make you lose your intellectual property: a poorly worded contract, an administrative mistake, and more. It’s critical to protect yourself; losing your “farm” could mean you’d lose a (potentially) multi-million dollar asset for your business.

The Solution: Create an intellectual property protection plan that’s unique to you

Every company has its own unique intellectual property portfolio, so every company will need a unique intellectual property protection strategy. This protection plan should include your patent protections, copyright and trademark registration information, security measures for your trade security, and more. Having a plan in place that’s geared toward your own intellectual property not only provides for a more streamlined intellectual property acquisition process but also helps prevent the loss of invaluable corporate assets by providing a significant in terrorem (serving or intended to threaten or intimidate) aspect to deter would-be infringers.

1. No Formal Policies

Many companies float along without any specific written policies regarding website use and appropriate procedures for intellectual property protection. They prefer to keep their heads in the sand until a problem arises. Unfortunately, once a problem does arise, it’s often too late to correct it. Furthermore, the lack of existing procedures not only may expose a company to vast amounts of liability, but time wasted determining the appropriate procedures may lead to an irreversible loss of intellectual property or expose a company to punitive damages associated with willful infringement.

The Solution: Proactively draft written policies and procedures

Companies need detailed written policies and procedures before a problem arises. From the outset, a company can incorporate strategies and key provisions, detailing proper reporting and administrative procedures.

But your policy needs to be treated like a living document; it can and should evolve as your business changes. You’ll need to periodically review and update the policy to address changes in the corporate information technology structure, as well as changes in the intellectual property portfolio. Enlisting the assistance of a qualified information technology attorney can be invaluable in adapting a policy framework to a particular business and website. A qualified attorney can also assist in continually modifying the policies and procedures to limit loss, increase efficiency, and avoid unnecessary litigation.

Disclaimer: The content on this page is for information purposes only and does not constitute legal, tax, or accounting advice. If you have specific questions about any of these topics, seek the counsel of a licensed professional.