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Michigan Privacy Laws
The importance of a proper Privacy Statement on a client Web site can not be overemphasized. Privacy is one of the hottest topics related to the Internet, and it is wise to keep informed about these issues (see gigalaw.com, TrustE.com, ePublicEye.com).

One of the most active enforcers of privacy law on the Internet thus far is the state of Michigan. The state attorney general's office is using a decades-old consumer-protection law to make a campaign against what it sees as serious privacy violations online. It has sent warning letters to numerous Web sites, and intends to levy fines if these initial violators don't modify their site content.

Essentially, a proper Privacy Statement indicates how the site will use any information collected such as trade or resale of personal data to other companies. If the site does not indicate how it uses such information, but does collect such data, it would be in violation of Michigan's consumer protection laws.

This is a precursor to impending federal online privacy laws, which are expected to cover much the same ground.

Federal Privacy Laws
A Federal law took effect on April 21, 2000, of which the majority of Web developers are entirely ignorant. This law, called The Children's Online Privacy Protection Act (COPPA), passed in October 1998. The Federal Trade Commission has been authorized by Congress to administer the law. The new law was designed to govern the practices of commercial Web sites that interact with children. If you operate a commercial Web site or an online service directed to children under 13 that collects personal information from children or if you operate a general audience Web site and have actual knowledge that it collects personal information from children, you must comply with the Children's Online Privacy Protection Act.

To determine whether a Web site is directed to children, the FTC considers several factors, including the subject matter; visual content; age of models on the site; language; whether advertising on the Web site is directed to children; information regarding the age of the actual or intended audience; and whether a site uses animated characters or other child-oriented content.

The Children's Online Privacy Protection Act and Rule apply to individually identifiable information about a child that is collected online, such as full name, home address, E-mail address, telephone number, or any other information that would allow someone to identify or contact the child. The Act and Rule also cover other types of information—for example, hobbies, and information collected through cookies or other types of tracking mechanisms—when they are tied to individually identifiable information.

You must post a Privacy Policy on the Web site, and you must link to it in any page that initiates an ongoing relationship (commercial, discussion, or informative) with your visitors. The policy must state your procedure for verifying parental permission to conduct these relationships with children. The "operators" of the Web site or online service must make their offline contact information (name, postal address, and telephone number) available to parents.

Other Countries
In addition to laws such as these, there may be other global laws in place in countries that may consider language or visual content to be objectionable or "obscene" and for which they may seek legal recourse. Although not common, some Web sites have Terms of Use statements, which limit use of the site to specific countries, or region such as North America.

The newly cooperative and aligned countries of Europe have a particularly strict privacy policy in the works, which will directly impact any U.S.-based site that has European visitors.

While it is unlikely any foreign government would pursue a matter against a small company or business, it is not impossible, and grows more likely as the world in general becomes more "wired."

Domain Names
If you choose to procure a top-level domain name (TLD) on behalf of your client, be sure to read the fine print of any agreement for registration with any organization other than Network Solutions. Some "low cost" registrars are giving away domain names either free, or at a low price (less than half of what Network Solutions charges, currently $70 for two years), in order to gain market awareness. What you may miss, however, is that some of these alternate registrars have a clause in their agreement that states that they may resell any domain name you register to another "higher bidder" at any time in the future (unless you can prove ownership of a registered trademark).

Essentially, you never actually own the domain under this type of agreement, and are only "leasing" it. If a client were to lose their domain at some time in the future because of this, you would undoubtedly be held negligent in acting on the client's behalf and could be liable for loss of revenue and recovery of marketing costs associated with building a brand around the lost domain name.

Design Issues
On the issue of design, many Web designers usually give up all rights for their work to the client, while retaining a right to promote their involvement and maintain visual copies of said work within an online and offline portfolio. Some clients believe that their design is solely theirs, even when you have signed some type of "work as for hire" agreement.

They don't realize that you may use common colors (there are only so many teal or medium blue shades in the common 216 "Web safe" palette), and fonts such as the Microsoft Web set that comes with MS Office and Internet Explorer (i.e., Verdana, Arial Black, etc.), or use common "wingdings" such as right-arrows or home symbols. There are also a limited number of ways to place navigation menus, such as left side, across top, etc. These are common attributes of Web development, which are seen all over the Internet, and the client cannot own these elements or combinations, and it is important to make your client aware that you may use similar colors and typography on a future client's project.

On the other hand, if you blatantly rip-off another Web site's design (i.e., do a screen capture, then trace the content, replacing it with the client information) you, and not the client, would be liable if the company you stole a design from wanted to pursue legal action. Never do this. It is common for beginning designers to "borrow" HTML from other sites to learn the basics, but even this is now considered a no-no, and may result in a call from somebody's lawyer.

Protecting Yourself
In all cases, you should never begin a Web design project without a written job agreement. The work agreement should include the pricing and deliverables (such as an outline of pages to be built), which is often copied from your original proposal to the client. For your protection, you should include the following sections in your agreement:

• Ownership of Content and Assignment of Rights—you should disclose what rights the client will have, and any limitations thereto. You might indicate that the client does not own the "style of the artist" or common elements and color combinations. Indicate that you retain the right to claim creation of the work in your promotional materials both online and offline and have the right to include images from the project, including any work-in-progress imagery. Client only owns the final delivered content, and does not own any development work (such as comps and unused mockups). Client does not own the original media (back-ups) of materials, which you have in your possession.

• Legal Responsibilities of Client—you should include, in writing, notations about the laws mentioned above, such as privacy, interstate commerce, and laws of foreign governments, either presently in effect or which may be enacted. Indicate that the responsibility for compliance with any and all local, state, federal, and foreign laws is solely the client's responsibility. While you may assist the client in preparing content related to these issues, such as a stock privacy statement, the client is ultimately responsible for the accuracy of all content on the Web sites. Have them initial this section as understood and agreed to.

• Non-disclosure—indicate that under no circumstances will you be liable for any amount, above the total cost of the project, for any alleged breach of confidentiality. Indicate that any alleged breach will be mediated in your city and county.

And, equally important, make sure you get a physical signed copy, and not merely a faxed copy. You want to have a postmarked envelope confirming when it was sent to you, and the hand-signed and dated copy for your records.

The Bottom Line
Being aware of these types of laws and potential problems can ensure you remain in business, and can help you from losing valuable assets and your reputation.

While there is no perfect solution for protecting yourself from potential liabilities, particularly if you don't operate as a corporation and have liability insurance, these suggestions should help minimize your risk. Be careful out there.

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