Regulatory Issues for Your Company’s Website

Whether your company’s website is just a facet of your business, or is the whole point behind your business, your company should be aware of a number of laws and regulations surrounding website, and make sure that your company and website are compliant with them.

DMCA — The Digital Millennium Copyright Act, which was implemented to amend copyright law in response to the growth of the internet. The DMCA can be particularly important for operators of websites that feature user-created content, since users can (knowingly or unknowingly) include copyrighted material in their submissions (website operators are especially on the hook, given that the DMCA’s main innovation was to exempt internet service providers from liability for copyright infringement that occurs through their service). Accordingly, you should make sure that your website has a DMCA takedown policy (typically published as part of the Terms of Service/Use), in which copyright holders can notify you if they believe their material is on your website and permit you to take it down.

COPPA — The Children’s Online Privacy and Protection Act imposes regulations and requirements on operators of websites that are directed at children under the age of 13 (or where the operators have actual knowledge that their website is used by children under the age of 13). Specifically, COPPA requires applicable websites to obtain verifiable parental consent before collecting personal information (even including a name or an email) from children users. COPPA also prohibits applicable websites from presenting advertising for “adult” products, such as alcohol or tobacco.

ADA — The Department of Justice has been working on rules for applying the ADA, or Americans with Disabilities Act, to websites that are subject to the ADA. However, the DOJ has recently reversed its position that websites wouldn’t be subject to the ADA until final rule making is complete, bringing enforcement actions against websites for universities, museums, county courts, and grocery delivery services. Moreover, the DOJ has stated that websites must be accessible to the general public, not just to the actual users of the website. If your company’s website is where your company actually engages in commerce (i.e. where you sell your product; the website itself is your company’s product), then you may want to consider adopting the Web Content Accessibility Guidelines. 

Enforcing Your TOS — Finally, it is important for website operators to remember that their Terms of Service are the contract between them and their users. That being the case, you don’t want to end up like one of the many “browserwrap” cases that have been making headlines over the past few years. Many websites that have tried to enforce their ToS against violating users have had those ToS invalidated by the courts on the basis that the website could not demonstrate that the user affirmatively assented to the to the ToS. As a result, it’s not enough to say that mere use of a website constitutes a user’s acceptance of the ToS. Instead, best practices seem to dictate that users should be presented with the actual text of the ToS, and be required to click an “I accept” or similar button; the website should also have a mechanism for recording the user’s consent.

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