Website Compliance: Top Costly Legal Risks Every Business Should Consider | Ward and Smith, PA
During COVID, many companies were forced to digitize their entire business model, becoming dependent on their websites and other online platforms to retain employees, revenue and market share.
Therefore, businesses need to invest a lot of time and resources to make their website a major revenue driver (and will continue to have to do so for the foreseeable future), but what precautions should these businesses take to ensure that their website is successful? ensure that their website does not also increase their business risks and liabilities?
This month, attorneys Angela Doughty, CIPP / US, Peter McClelland, CIPP / US and Erica Rogers discussed how businesses could avoid website compliance issues and the associated legal fees. result, including ADA compliance lawsuits; privacy implications and disclosures; and trademark and copyright applications.
ADA Compliance Lawsuits – Angela Doughty, CIPP / USA
Most businesses are surprised to learn that the Americans with Disabilities Act (ADA), which was enacted to prevent discrimination against people with disabilities. Pitches generally open to the public, also applies to their websites and other digital platforms such as mobile sites and mobile applications. The applicability of ADA to online accommodation venues is to ensure that people with disabilities (blindness / low vision, deafness / hearing loss, limited movement, etc.) have the same level of access to content and services. online than everyone else.
ADA website compliance litigation is surprisingly common and is expected to increase as consumers increasingly rely on websites and mobile apps to conduct their businesses. Law enforcement cases cover a number of industries – real estate (Zillow®), retail (Banana Republic®), entertainment (Beyoncé), and restaurants (Domino’s Pizza®) to name just a few only a few recognizable and well-defended defendants – and many resulted in federal fines and mandatory ADA compliance.
Although there are numerous legal actions regarding website accessibility, there is no legislative standard that directly defines the specific requirements. There is, however, a set of private sector standards, developed by experts in technology and accessibility, called the Web Site Content Accessibility Guidelines (“WCAG”) that have been widely adopted, including by federal agencies. . The current guidelines are WCAG 2.1 Guidelines, and it contains three accessibility levels – A, AA, and AAA.
WCAG does not require the use or inclusion of specific technologies, such as those that amplify words or offer audible versions of content, for compliance. Instead, the compliance requirement is that companies offer websites and other digital platforms that implement the 4 principles of WCAG: (i) robust sufficient to work with user agents and assistive technologies (e.g. web browsers and screen readers), (ii) also perceptible (e.g. text alternatives for non-text content, such as captions), (iii) easily operable (eg, keyboard-accessible functionality only), and (iv) understandable (eg, readable and understandable text).
We strongly recommend and work regularly with marketing professionals and other service providers specializing in accessibility compliance testing for technological aspects of websites. Businesses should also integrate regular testing and compliance assessments for their website, especially when an update or features are added.
Privacy Implications and Disclosures – Peter McClelland, CIPP / USA
Spurred on by massive data breaches that have seen thousands of personal information of individuals exposed to criminals, every state in the country has now developed some form of regulation detailing the requirements for businesses after a data breach. Such data breaches can stem from the compromise of business email, ransomware, hacking, or even accidental disclosure of information to unauthorized parties. These violations can have serious consequences, including legal fines, class actions, and regulatory actions.
Some states have gone even further to create comprehensive privacy laws that impose both internal requirements on organizations that hold the personal information of state residents (such as where the information can be used at home. for targeted advertising purposes) and customer requirements (such as the content of a website privacy notice). For example, California requires organizations to disclose information that a website collects about residents of California, regardless of where the collecting organization is located. California law also requires a privacy notice to state the purpose of this collection, the third parties to which the organization will transfer the information, etc. In 2023, California will see additional requirements come in, such as requiring an annual audit of the organization’s cybersecurity practices.
Also in 2023, Virginia will bring into force a law with several similar disclosure requirements for organizations processing or using information about Virginia residents and adds a requirement that a data protection assessment be performed before multiple uses of. data that the Virginia legislature considers high risk. to consumers. Any organization dealing with the personal information of Virginia consumers is subject to its requirements and must develop a compliance strategy to address the new legal landscape. Dozens of states, including North Carolina, have seen similar laws introduced in their state legislatures.
To develop a compliance strategy for your website, it’s important to have expertise in your area. Discuss your website’s compliance needs with a lawyer who is also a Certified Information Privacy Professional (CIPP / US) can help a business navigate the patchwork of obligations that may apply.
Trademark and Copyright Applications – Erica Rogers
Application of Trademark and Copyright Law to Websites
Intellectual property law impacts all businesses, whether the owners of the business know it or not. The moment a name is used in connection with your company’s products or services, certain trademark rights are created. As soon as your website is created or updated, certain copyrights appear.
These same day-to-day business activities can also create significant legal headaches if the creation and use of intellectual property is not handled properly:
- Is the name of your product or company available?
- Is the corresponding domain name available?
- Do you own the copyright in any material on the website?
Internet marketing and search engine analysis are relatively new issues for brand owners. For example, keyword advertising, where brands appear in banner ads, cybersquatting, and unauthorized use of trademarks in HTML codes can all cause confusion of initial interest, which can damage reputation. of a brand. To avoid this type of infringement, all specific on a case-by-case basis, we recommend that you avoid the use of technologies to engage in unfair competitive advertising with third parties. Competitive advertising may be legal, but only in limited circumstances where the allegations are substantiated and an association rejected. To respond to this type of infringement, all specific on a case-by-case basis, we generally recommend considering: (a) sending a formal notice to the infringer; (b) file a complaint with the search engine provider; (c) buy its own branded keywords ahead of its competitors; or (d) using UDRP complaints to fight against the bad faith registration of Internet domain names.
If the website design, photographs, text or other creative works are not original content, it is vital for the business to ensure that they have express permission to use them.
Often times, companies hire third party graphic designers to help develop their websites. In these cases, too, companies must ensure that each designer or design company has assigned all intellectual property rights to the company. If such a transfer is not possible, given the leverage effect, the recommendation is at least an exclusive license to use the works. This way, no other company can use substantially similar website designs.
Challenges and risks remain for website owners, even at a time when websites have proven to be a saving grace for many businesses during the COVID-19 pandemic.