Are Website Designers and Developers Liable For Failure to Provide Website Legal Compliance?
Your shop designs and builds websites.
Until very recently, you’ve not been concerned about substantial exposure to liability associated with your work. Now that that websites are highly regulated, you’d better be aware of the pitfalls and what to do to minimize your risk, or you’ll definitely be in the cross hairs of some aggressive plaintiff’s attorney soon.
Are There Really Website “Building Codes”?
Think of it this way. Imagine that you are a design-build firm in the real estate construction industry. A client has employed your firm to design and build a “brick and mortar” retail store. You’re required to build in compliance with applicable building codes. If you’re not in compliance with the building codes, you’ll be liable to your client.
It’s the same with your design and development of a business website for your clients. Certain design decisions for websites, whether made by you or your client, are governed by a patchwork of federal and state laws, and in many cases, foreign laws may apply.
Certain “building codes” govern the way you design and incorporate certain design elements into your client’s site. Others require your client to take certain actions to avoid liability or loss, and some require actions from both you and your client.
Here’s a good example. As you’ll see below, there are specific legal requirements for presentation of an online “click-wrapped” agreement (where agreement is indicated by clicking on “I ACCEPT”). If these requirements are not followed, the “agreement” will not be a binding contract – it will be unenforceable. So, what if your shop designs and builds a click-wrapped presentation in violation of these rules, and later your client is sued by a customer for a privacy violation. The limitations of liability in the online agreement will be unenforceable, and guess who your client’s lawyer will sue as a result?
What To Do To Protect Yourself?
1. The first thing to do is to disclaim all responsibility for legal advice to you client. Make sure that your client is solely responsible for all legal issues regarding the site. You should accomplish this in your agreement with your client.
Never, never provide standard legal documents to your client, and never recommend to a client that he or she copy someone else’s website documents. You should recommend a trusted source for website legal compliance – whether in the form of a referral to an attorney who is a specialist in the field or in the form of an online document drafting service. You could also suggest that your client Google “website legal compliance” to find sources of assistance.
2. Develop a website design and development policy for your shop that establishes clear guidelines that ensure that your design and development efforts are legal. You don’t want to be developing site features that are clearly illegal. Make sure that the policy is communicated and enforced in your shop. The suggestions below could be the beginning for such a policy.
Because certain design decisions for websites, whether made by you or your client, are governed by a patchwork of federal and state laws, and in many cases, foreign laws may apply. You need to protect yourself from a potential claim that you’re responsible for website legal compliance. You won’t hear about it from your client until it’s too late.
About Chip Cooper: Full-time practicing Internet Attorney, SaaS Attorney and Software Attorney. My posts help you Protect Your Online Business with Internet Law updates and Website Legal Forms. Follow me on Google+. Sign up for Google Hangouts notices, and download my FREE book 7 Shocking Legal Gotchas That Can Shut Down Your Online Business In a Single Day… And What to Do About It!