Web Site Story - The Internet and The Law-The Key Issues

by David Rabinowitz

What do you, the Internet user, web site host or Internet service provider, have to worry about with web sites that you didn't have to worry about with other advertising or publishing media?

1. Interstate and international exposure. Think of all of the defamation, copyright, trademark and privacy issues of the print, television and radio media, except that your content is distributed into all fifty sovereign U.S. states and one or two hundred foreign countries, each with it own set of laws. A federal court in Tennessee has convicted California site operators of obscenity and Germany has compelled Compuserve to break connections to California sites posting neo-Nazi material. Considerations that are part of national or international ad campaigns or publicity apply to every web site.

The Babel of laws applying to web sites can be limited somewhat by confining any product or service offering to residents of specified states or countries. But other content is vulnerable to legal attack wherever it appears. In the United States, courts are reaching a consensus about when and where a web site host is vulnerable, largely depending upon the site's activity in appealing to or doing business with residents of a particular state. What this means is that web sites have to be checked to assure that their content is safe in all significant jurisdictions, or restricted to subscribers in safe jurisdictions.

2. Interactiveness. Frequently, web sites permit visitors to post or upload material, as through chat groups or bulletin boards. While the uploaders are clearly responsible for their material, the site host is also potentially liable for irresponsible postings. The exposure of the site host is greatly increased when it responds to questions from visitors or establishes responding services for inquirers.

The trend has been to relieve site owners of responsibility where they merely open sites for the exchange of information and have no notice of wrongdoing on their sites. However, web sites permitting uploading must monitor the latest decisions. Existing laws place duties upon web sites if they have notice of wrongdoing of various kinds on their sites.

3. New medium rights. This issue is an old chestnut, but a hot chestnut nevertheless. Even if you have a contract giving you the right to reproduce and transmit content by radio, television, videocassette, telephone, cable television, satellite, mimetic enactment in front of the Metropolitan Museum of Art, and so on, you may still lack the right to expose it to the world on your web site.

The invention of new media for copying and distribution has raised issues of ownership of rights in the new medium throughout the 20th century. Courts have been called upon to say whether broad dramatization rights included motion picture rights (1911), whether motion picture rights granted in the silent era included talkie rights (1933 and 1936), whether motion picture rights included distribution by television (1968), whether television rights included cable television rights (1993), and whether motion picture or television rights included videocassette rights (1996 and 1988), among others. The courts have answered these questions by saying, respectively, yes, no and yes, yes, maybe, yes and no.

Read the contracts you have that grant you the right to use your web site content. If you find a clause giving you the copyright or rights in all media "then known or thereafter invented", or the like, you are probably all right. If not, start worrying. Even with the foregoing new media language in your contract, the convergence of media in the Internet may place you in conflict with another grantee having rights in a different old medium and similar new media language in his or her contract.

4. Privacy. Despite the fact that your site visitors are, indeed, visitors, and there only by your tacit invitation, the secrecy of their identity and personal characteristics has become a very hot issue. While much of commercial value can be learned from what visitors do at your site-or even the fact that they are at your site at all-current feeling is that visitors have a right to keep information learned from their visits secret unless they knowingly consent to its collection and disclosure or use. There is little law in this area. Most industries are experimenting with self-regulation. However, it is expected that the Federal Trade Commission, not to mention several state legislatures, will soon act. Prudent web site hosts will anticipate government controls by instituting a privacy policy responsive to the principal current consumer complaints, or alternatively, closely monitor the activity of government authorities in jurisdictions of interest.

5. Linking and Framing. Linking/framing is the is the two-faced god of the internet. While linking from other sites produces the traffic that makes a website valuable, the right to link has produced controversy. So-called "deep linking" to pages other than the site's home page bypasses advertising and disclaimers that the host insists visitors see. Framing-the practice of bringing up another site within a window of the site making the connection-allows the framer to keep its name and advertising on the screen while supplying content from the linked site. Both framing and deep linking have provoked litigation, and their legality is far from settled.

6. Downloading. This is only arguably a new problem because it is an old problem in a new guise. Downloading is merely an extremely convenient mechanism for making copies. Print and electronic media have always been subject to copying of various kinds. Whether making material available for downloading implicates the site host in any illegal copying by visitors is a wide open question where the uploading of the material did not violate the law. For this reason, the need for new media rights becomes important when the right to post and allow downloading is raised. Web site owners must also consider controlling downloading with passwords.

Web site names. One Internet issue that is somewhat different from exposure to civil or criminal prosecution is that of controlling the name of your web site. How do you get and protect the name of your web site?

The part of the site name that you care about is the part that has your company name or trademark. This part is called the domain name. The basic rule on registering a domain name is first come, first served, so prompt action is important. Most companies register not only a domain name containing their own company name and the names of their principal trademarks, but also domain names close to those names and trademarks.

Where there are conflicting claims to domain names, the body responsible for registering domain names appears to be more concerned with staying out of lawsuits than saving domain names for their rightful owners. Currently, remedies are only available outside of court for bad faith registration of domain names. Otherwise, unless you have a court order, you can't get your company's name or mark back from someone who has already claimed that name for a web site.

It is worth noting that domain names can be registered as trademarks, and the trademark/dilution arena is where the ultimate domain name battles will be fought and determined.