The Lawletter Vol 35 No 3, February 11, 2011
For most professional, commercial, and retail establishments, maintaining a website has become a matter of business necessity. Yet with its undisputed advantages, the operation of a website also presents new areas of exposure to liability for its owner or operator. Sources of potential liability include infringement (either in the domain name itself or in the content of the website), privacy (relating to the use of website user information or to the posting of website content containing the name or likeness of a person), defamation (in the form of web content), reliance (based on information contained on the website and the use of that information), or accessibility (for visually impaired individuals).
On January 10, 2011, the U.S. Department of Justice concluded a series of public hearings on proposed new rules that would expand the Americans with Disabilities Act by making certain websites accessible to the blind and deaf. These new rules, expected to be promulgated within the next year, are sure to prompt litigation over website accessibility issues. Even before the proposed rules, several judicial decisions revealed potential bases for website liability.
In October of 2007, the U.S. District Court for the Northern District of California granted class certification to a class consisting of "all legally blind individuals in the United States who have attempted to access Target.com and as a result have been denied access to the enjoyment of goods and services offered in Target stores." Nat'l Fed'n of the Blind v. Target Corp., 582 F. Supp. 2d 1185, 1189 (N.D. Cal. 2007). In an earlier decision, the court held that the plaintiffs had stated a claim on behalf of visually impaired individuals under the public accommodation provision of the Americans with Disabilities Act, based on the retailer's failure to make its website accessible to blind persons by including coding that would make the website compatible with screen-reading software that vocalizes text and describes graphics. Nat'l Fed'n of the Blind v. Target Corp., 452 F. Supp. 2d 946 (N.D. Cal. 2006). After several years of litigation, Target agreed to modify its website for blind users and to pay $6 million into a settlement fund that would be used to pay valid claims submitted by members of the California subclass. 14 Trials Digest 12th 4.
In a decision showing another potential area of liability for website owners, a real estate title company, which assured consumers that it maintained "physical, electronic and procedural safeguards" to protect their personal information but which nonetheless discarded unshredded consumer home loan applications into an open trash dumpster, faced FTC charges that its inadequate storage and disposal procedures for sensitive consumer information violated federal law. In re Nations Title Agency, Inc., File No. 052-3117, 2006 WL 1367834, ¶ 11 (FTC May 10, 2006). The charges were ultimately settled for an undisclosed amount.
[The attorneys of the National Legal Research Group have prepared a White Paper that analyzes the many potential sources of website liability and shows owners/operators of websites how they can avoid liability. This White Paper includes actual examples of how some website owners/operators have been exposed to liability and how others have avoided liability. We have also prepared a White Paper addressing the special problems involved in law firm websites, including compliance with ethics and lawyer advertising rules. If you or your clients operate a website, you need to be aware of the legal implications. These White Papers gather together the information you and your clients need to cover all the bases.]