Internet LiabilitiesThe Legal Traps and Pitfalls

Introduction Fundraising Social media

◦ Trademark ◦ Defamation

Minors CAN SPAM Act

◦ E-mail Marketing

Points to Ponder

Online giving accounted for $4-6 billion in donations last year in US alone

Social networks and blogs/websites are the fourth most popular online activities

Email is falling behind Social networks as method of exchanging and sharing information

Average age of online donors is rising each year

Trends

The average gift size among nonprofits grew from $56 to $60

Online gifts are larger than the average gift from traditional channels

Online Donations

“Organizations and web designers must be aware that the traditional rules with

respect to prohibitions on providing particular services, treatment of

advertising income, sales activity, as well as lobbying restrictions still apply

to website activities.”

2000 EO CPE at 140.

Notes, Warnings, and Cautions:

Tax-exempts are not exempt from all taxes, only from those taxes that would otherwise apply to income received from activities that are substantially related to their exempt purposes.

In other words…

On-line Charity Malls◦ % of purchase price goes to charity

Virtual Storefronts◦ Section 513(c) Fragmentation Rule

IRS will review each piece of merchandise

Sale of Products on Line

◦ Trademark Seek permission Avoid using other’s trademarks

◦ Copyright Who owns the work Monitor for misuse Use symbols

Intellectual Property

Obtain Licenses from All Authors and Speakers ◦ Video ◦ Text

Applies to All Intellectual Property◦ Text, Graphics, Photos, Video

Secure Rights

Adopt a standard policy and practice for all to sign

All authors sign standard agreements◦ Obtain right to publish AND post online

Speakers grant rights to post online

What Can We Do?

Defamation◦ Comments made by others can be attributed to

organization (Cisco Systems lawsuit)◦ Protections

Federal Communications Decency Act §230 Disclaimers and terms of use Take-down policy Refrain from commenting on third-party posts Consider available screening capabilities

Social Media - Facebook

Develop club policy that addresses permissible use Monitoring Reserve right to remove content and comments,

block users, etc

Our community is an echo of our voice…we must set the tone.

Solution

◦ Antitrust◦ Defamation◦ Contributory Copyright Infringement◦ Political Activity◦ Providing or promoting “Professional” Advice

Limit Liability

CAN SPAM Act

Emails that advertise or promote a commercial product or service, such as membership in the organization or the sale of organization publications, events, etc.

Members generally excluded

What Could Be Considered SPAM?

Give clear notice of opportunity to opt-out.

◦ MUST be in every email message. Provide a functioning opt-out in every email message. This

can be a return email address or other Internet-based mechanism that is capable of receiving opt-out requests for at least 30 days after the transmission of the original message.

Further, if the recipient has opted-out, the sender may not exchange or otherwise transfer or release the email address of the recipient even within the club.

Email service protects Club from fines and other liabilities.  Constant Contact, easy to use, protects us.

Compliance

Provide a valid physical postal address of the sender.

Clear and conspicuous notice that email is a solicitation

Make sure the "from" line accurately and clearly reflects the sender.

Use a valid subject line directly related to content.

Compliance Continued

Photo Subject holds rights of publicity • get release from parent or guardian before use

photo beyond consent.• consider children’s issues on Internet.

Gain rights for all future uses

Photos and Information of Minors

1. Children’s Online Privacy Protection Act of 1998 (COPPA)• Collection of PII directly from a minor (children

under 13)• Collecting and storing Personally Identifiable

Information

Reference:

1. Know when consent of the PARENT/GUARDIAN is required

2. Know when consent of the ANOTHER SUPERVISING ADULT is sufficient

3. Know when no parental/guardian consent is required

4. Disclose your privacy policy

5. Know the proper use of online communications

6. Allow for refusal to participate at any time

Nielsen’s “Policy regarding the collection of PII directly from a minor”

Obtain from everyone in film/video. Make sure you have all people and possible, future rights

needed. Photo participant release; Photographer release

Privacy Rights: separate from commercial use (invasion of privacy could apply to putting someone’s picture on the Internet).

Obtain Appropriate Releases:

Draft a privacy protection policy:What personal information is being gathered about userHow the information will be usedWho the information will be shared with, if anyoneChoices available regarding how collected information is usedSafeguards in place to protect the information from loss, misuse, or alterationHow user can update or correct inaccuracies in his or her information.Provide mechanism for consent, access and correction.

Solution