Having a website is essential for almost all business owners, and the Internet is a tool that allows companies that were once operating in a limited geographic area to literally conduct business across the globe. As much as a website can increase a company’s reach, it also can create new and sometimes unforeseen sources of liability.  Here are some ways we help our clients avoid some of the more common sources of liability that can arise from having a website.

Make sure the content on your site belongs to you or you have permission to use it.

Copyright infringement is another potential source of liability that comes with having a website. Make sure that all the content on your website is your intellectual property, or that you have permission to use it, or that it falls within the fair use exception to copyright. “Fair use” allows limited use of copyrighted material without having permission from the copyright holder; some examples of fair use are commentary, criticism, news reporting, research, and scholarship. Keep in mind that you can be held liable for what other people post on your site; this means that if you allow comments on your site, you own any content posted on your site by the commenters. One way to limit your exposure is to have a disclaimer stating that by posting on your site, the poster warrants that the material posted is their intellectual property, or that they have permission to use it. However, this does not completely shield the website’s owner and, if infringing material is posted, the owner could still be sued.

Don’t say disparaging things–unless they are true.

Libel is one of the most obvious potential sources of liability for the owner of a website. A statement is libelous if it is a written communication expressly or impliedly stated to be factual that paints something in a negative light. “Something” can mean an individual, a product, a business, group, government, or even a nation. So, for example, if you sell widgets on your website and you are certain that your widgets are the best in town, tread carefully when discussing your competitor’s widgets. Also, be aware that there are many defenses to a libel claim, the most obvious one being that of truth; if the statement made is true, it cannot, as a matter of law, be libelous.

Have a well-written terms of use and privacy policy.

Having a well-drafted terms of use and privacy policy will limit the liability to which a website owner is exposed. The terms of use could potentially state that the information provided may not be up to date, state that the opinions on the site are solely that of the author, reserve the right to change the terms and conditions, or prohibit visitors from using the site in certain ways. The privacy policy will state the ways in which you will be using the personal data, if any, submitted through the site.  Of course, what the terms of use and privacy policy will include is highly dependent on the type of business you are running and the website itself.

- Claire Kalia


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