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Staying Out of Trouble Online

What we often call "common sense" is something that we develop from experience. Still, even with all of our real world experience, often we don't use our common sense when we're online. You see it on the news when someone gets themselves or their company in trouble online. So let's review the basics.

The starting point is that despite what you may think and have read, the Internet is not the Wild West. There is law, and as we are in the second decade in the life of the commercial Internet, it can often be well developed law. However, there are still gray areas since new technologies continually hit the market.

The former General Counsel to AOL summed it up when she said, "To be safe, just assume that the same laws will apply online as anywhere else. Anything that would violate the law elsewhere will violate it online."

Now that you're warmed up, here are the common-sense rules. They apply whether you're on your home computer surfing the Internet or on your office computer doing your job. They also apply across all of the online technologies, from Facebook to cloud computing. If you stick to them, they'll keep you, your company, and your family out of trouble. Put another way, your Internet service provider won't cancel your account and you won't be fired.

The Tips

Copyrights

You must not use somebody else's material on your website, on Facebook, or in your e-mail without their permission. There is no "Well, you see, because, listen to my long story" defense. This admonition applies equally whether the work is written text, program code, clip art, or anything else that can be copyrighted.

For some strange reason, people commonly believe that copyright law doesn't apply online. That's simply wrong. Copyrights are as real online as elsewhere.

The "fair use" doctrine allows you to copy and distribute copyrighted material without permission under certain circumstances. The factors used to decide if a particular use is "fair use" include the purpose of the use (a school can copy more than a business), the amount of the original used (using a small part of the original helps) and the effect of the use on the potential market for the original.

However, be careful with "fair use." The boundaries are murky, and you can easily cross the line into copyright infringement. When in doubt, contact the author and get permission to use the material. Finally, always acknowledge the author's copyright when you copy their material.

Libel and Slander

When you are online, be careful about making statements that can harm a person's or company's reputation. You're as responsible for your false or misleading words online as elsewhere.

Posting defamatory remarks on a website, on LinkedIn, or in any online forum can get you sued just as they can in a newspaper. In fact, you can cause more damage online because of the huge numbers of people that may see what you have to say.

So, if you post something disparaging about a person or company, just be sure that you're right. Truth is an absolute defense to a libel or slander action.

Adult Material

It's really quite simple. Adult material has no place in the office.

Many employers monitor the websites employees visit. Few employers appreciate visits to places like barelylegal.com You also put your employer at risk of a lawsuit if you offend the women in the office who may feel that the "boys'" lunchtime visits to adult websites make the office a "hostile work environment."

As an employer, you must not permit the use of your computers to visit adult websites. The "Mad Men" days of whiskey at 10AM, cigarettes in the elevator, and pinup calendars in the office are over. Sorry boys.

Contracts

Assume that every agreement you consummate online is a legal and binding one. This is true whether it's a business deal done by e-mail, an order form you completed at MyFavoriteOnlineStore.com , or any other type of contract or agreement. Just assume that when you click "I Accept" that it means what it says.

It still surprises me, but many people think that it doesn't count if you do it online. Wrong!

The law quickly changed to allow forming contracts online. Almost as soon as the web browser was invented, businesses required the ability to form enforceable contracts with valid signatures online. So the necessary laws quickly followed.

Since your employees probably often work online, you need to establish clear corporate rules about who can bind your company and with what limit of authority. You need to address this before somebody who shouldn't be spending money for the company creates a problem.

E-mail

Be careful about what you say in your e-mail. Don't assume that only your intended recipient will read it. It can be forwarded wayyyyyyyyy too easily. I repeat, it can be forwarded way too easily. E-mails have an amazing way of flying around an office or worse, the Internet.

Even if you need a password to access e-mail, you shouldn't assume that your e-mail is private. All too often, e-mail password protection is easily circumvented, both at home and in the office.

E-mail privacy may just be as much of an oxymoron as jumbo shrimp. E-mail is subject to civil subpoenas and criminal search warrants. Moreover, it's next to impossible destroy. Once you hit the "Send" button, you should assume that all e-mail takes on an eternal life. If you find that possibility unacceptable, then don't send the e-mail.

The most conservative view for the proper use of e-mail is that if finding it posted on the lunchroom bulletin board is unacceptable, then use the telephone.

Bear in mind that even after you "delete" an e-mail, it may still exist somewhere on your hard drive or e-mail server (the computer from which you retrieve your e-mail). E-mail also is more easily copied and distributed than paper documents because it's digital. Finally, consider the possibility that network and system administrators and others can easily read it.

Advertising

While it is true that advertising laws specifically geared to the Internet are still evolving, you should assume that all traditional advertising laws apply to the Internet.

An "unfair and deceptive trade practice" or "false claim" made in your advertising can come back to haunt you whether it's in a newspaper ad or on the Internet.

Internet Use Policy

This is a simple one. If your business doesn't have an Acceptable Use Policy (AUP), then it needs to develop one immediately.

You can't reasonably expect your employees to abide by the "rules," if they don't exist or aren't clear.

Your employees will make mistakes with your computer systems and online. They're human. Help your employees help you.

Have an Internet savvy attorney assist you in creating an AUP. A well-written AUP will minimize your exposure to the many legal risks that being online brings.

It's not that the Internet is so treacherous because it's not. However, it's up to you as the employer to create the clear rules for all to follow.



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Tannenbaum Helpern Syracuse & Hirschtritt LLP provides legal advice only to individuals or entities with which it has established an attorney-client relationship and such advice is based on the particular facts and circumstances of each matter. Contacting us through this site, or otherwise, will not establish an attorney-client relationship with us. Any e-mail or other communication sent to THSH or its lawyers through this site will not be treated as subject to the attorney-client privilege or as otherwise confidential and you should not include any confidential information in any such communication.