How to do a Legal Audit of Your Website
I am so excited to introduce you to my good friend Paige Hulse of Paige Hulse Law and the Creative Law Shop. Paige is an attorney here in Tulsa Oklahoma who specializes in business formations, contracts, trademarks, succession planning and estates. I met Paige two years ago when she was looking for a designer to create the logo for her law firm that she was about to launch. We met up at Starbucks and bonded over our dogs, the creative industry and owning small businesses and the rest is history. Since then we have done a great deal of work together and Paige has really helped to legitimize my not so legit (at the beginning) business and I couldn’t be more thankful for such an expert.
Since we’ve been talking a lot about website design on the newsletter and blog (if you missed my post on the 5 Must Haves for your Website, check it out here), I invited Paige to teach us how to make sure our websites stand up legally. This is such great information for every small business owner! Enjoy!
How To Do A Legal Audit Of Your Website
By: Paige Hulse
Around this time two years ago, I decided to take my calligraphy side business one step further and see what would happen if I lent my hand at making it look like a real business: I hit publish on my very first website.
It was my first little online home, and while it probably would’ve made a designer cringe and a copywriter want to pull out their red pen, I was pretty darn proud of it. While I was at it, I snagged another domain just for the heck of it: www.shopcreativelaw.com. I wasn’t sure what I would ever do with it, but I had a gut feeling about it.
Anyways, I remember staying up late the night before I published my site going through a checklist of what it might need. You probably guessed it already: I wanted to make sure all of my t’s were crossed and my i’s were dotted, legally speaking, before I released it to the world.
Today, I want to walk you through something I’m encouraging all of my clients to do this quarter: perform a legal audit of your website. Before you build a house, you start with the framing, right? In the world of online business ownership, your website is your business’s “house”. We have to start with the basics, and make sure it’s a sound structure. This is something that you can do on your own, or can hire an attorney to perform a more extensive audit.
Anytime I speak with a client or a potential new client, I perform a very cursory, generalized website audit for them, and I always start with the footer of their site.
The Website Footer.
There are reasons why you see so many footers of websites with some of the same things: a copyright designation, a link to “legal terms” or “privacy policy and terms and conditions”. U.S. federal law dictates that these documents (specifically, your privacy policy) be easy for your site’s user to access at any point on your site.
A quick overview of what those are and why you need them:
The terms and conditions are the contracts that will govern the use of your website between you and the user of your website. Technically it’s not a law that you have one, but I have yet to encounter a case where a business owner doesn’t need one. If you are providing any sort of useful information on your website or selling anything on your website, having a terms of conditions is a no-brainer, and it is a best business practice to have one tailored for your own website.
And, word to the wise: If you’re taking a terms and conditions from somebody else’s website, not only are you probably breaking the terms and conditions of their own site, but you’re committing copyright violation. Moreover, you’re using a legal contract for your site’s usage without even knowing if it will protect your business. It’s hugely important to start with something that protects your own site, your own information, and what you’re providing on your website.
Now, privacy policy is actually a federal law. You must have a privacy policy if you’re collecting any sort of information about users on your site.
If you have any sort of email opt-in, you automatically must have a privacy policy. If you’re selling anything and collecting any sort of credit card information, PayPal or anything like that, you need a privacy policy. If you are just using Google Analytics and tracking the usage of your site, or collecting cookies on your site, you must have a privacy policy.
The FTC and Congress are very clear that in this age of growing online businesses, privacy interests remain paramount. They have been very clear that you must have a privacy policy on your website explaining to the user your site, what info you are collecting, and how you’re collecting it.
The next thing I will look for in the footer of your website is a copyright designation. I want you to just have that little copyright symbol, ©, with the year and the name of your company. For example, ©2018, Paige Hulse, LLC, or © 2017-2018, Paige Hulse, LLC.
The copyright designation is essentially putting a flag in the ground, and saying to anyone using your website, “I own the information on this site and any claim to it, this is mine, and I don’t want you to use it impermissibly.” While it’s a simple change you can make, it’s an effective one.
The last thing I’m going to be looking for in the footer of your website is any sort of disclaimer, if that’s appropriate. If you go to my website, you’re going to see a disclaimer at the bottom. That’s something that you need if you’re selling any sort of professional services; by that, I mean anything that must be licensed. So any sort of financial, tax, medicine, psychiatry, etc advice on your site. Unfortunately, there are quite a few cases out there where particularly bloggers have been sued and lost those cases in court after providing some sort of advice like that on their blog, and somebody took that information and misused or misapplied it to their own business and something went wrong, and ended up suing the blogger, and the blogger lost because they didn’t have the appropriate disclaimer.
Intellectual Property Infringement
After cleaning up the footer, it’s time to take your audit a little more in depth and search for intellectual property infringements on the site.
Your mind probably immediately jumped to imagery, and while yes, that’s absolutely valid, I actually want you to start much more basic. Do you own the design of your site?
Many of us purchase templates for our website design: for example, my website was built off of a beautiful template I purchased from Saffron Avenue. Because a website template is technically an original work of authorship or artistic expression, then technically, the designer of your template owns the copyright to your design. Check the terms of the sale of your website template and make sure there is some sort of expressed language in there conveying the license to use the design from your designer to yourself.
Once that foundational element is in place, it’s time to take a look at the imagery on your site. For all of the photos (headshots, stock photos, product photos, etc), do you own the copyrights? If your contract with your photographer states that you must give credit when publishing the images, are you doing so?
If you have any sort of “featured” banner on your site, or “as seen in”, do you have the rights to use the trademarks of other businesses you have displayed? Are you impermissibly using any other business’ trademarks in blog posts?
Finally, the copy; which yes, is considered the intellectual property of the copywriter. If you hired a copywriter, does their contract grant you the necessary intellectual property license?
Is any of the copy plagiarized, or infringe upon the intellectual property rights of another business? And while I know this doesn’t (read: shouldn’t) need to be said, but does any of your copy defame another business owner? Unfortunately, in the age of online marketing, defamation is becoming a more and more prevalent issue. Expect much more information on the topic later, but for now, know this:
If there are any defamatory statements (blog posts, general copy, etc) on your site, defaming another business owner or competitor, those need to be edited out immediately. Both from a business and legal perspective, that will expose your business to massive amounts of unnecessary liability.
Affiliates, Disclaimers, and Testimonials
Last but certainly not least, do your testimonials, disclaimers, and affiliate information on your site comply with FTC guidelines? While it’s hard to play a favorite, this may be the most important part of your audit, and unfortunately, I have yet to find many clients’ websites that pass this test.
The FTC has set out strict guidelines specifying exactly what you must do to stay legal with your disclaimers, testimonials, and endorsements, and I have summarized the entire FTC guidebook for you here.
Download the Marketing Handbook and keep it on hand for future reference, so that you know exactly what you must do to keep your disclaimers, testimonials, and endorsements FTC compliant on both your website and social media.
Have fun with your website, and let it show off your online business! Just remember to keep your online home above the law, so that you don’t invite liability to your doorstep.
As an attorney for entrepreneurs, Paige Hulse serves small-mid sized companies and high-end wedding professionals with their business' needs, ranging from trademark registrations and estate planning, to corporate restructuring and contractual needs. Paige's legal career began as an oil and gas litigator by day while building a calligraphy business on the side, and now blends the two by providing legally sound contract templates to creative entrepreneurs through the Creative Law Shop ®.
