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Mark Grossman

Staying out of Trouble Online

1 September 1999

What we often call "common sense" is something that we develop from experience. With computers and the Net being so new to so many, the lack of experience and common sense shows. Learning the basics is more important than ever as more businesses jump onto the e-commerce bandwagon. After all, nobody wants to be the last of the competitors with a Net presence. This is your lesson in the basics.

The starting point is that despite what you may think and have read, the Net is not the Wild West. There is law, albeit often ambiguous and still developing.

The former General Counsel to AOL summed it up when she said, "To be safe, just assume that the same laws will apply online as anywhere else. Anything that would violate the law elsewhere, will violate it online."

Now that you're warmed up, here are the common-sense rules. They apply whether you're on your home computer surfing the Web or on your office computer doing your job. If you stick to them, they'll keep you, your company and your family out of trouble. Put another way, AOL won't cancel your account and you won't be fired.

The Tips


You must not use somebody else's material on your website or in your email without their permission. There is no "Well, you see, because, listen to my long story" defense. This admonition applies equally whether the work is written text, program code, clip art or anything else that can be copyrighted.

For some strange reason, people commonly believe that copyright law doesn't apply to the Internet. That's simply wrong. Copyrights are as real online as elsewhere.

The "fair use" doctrine allows you to copy and distribute copyrighted material without permission under certain circumstances. The factors used to decide if a particular use is "fair use" include the purpose of the use (a school can copy more than a business), the amount of the original used (using a small part of the original helps) and the effect of the use on the potential market for the original.

However, be careful with "fair use." The boundaries are murky, and you can easily cross the line into copyright infringement. When in doubt, contact the author and get permission to use the material. Finally, always acknowledge the author's copyright when you copy their material.

Libel and slander

When you are online, be careful about making statements that can harm a person's or company's reputation. You're as responsible for your false or misleading words online as elsewhere.

Posting defamatory remarks on a website, or in an online forum or Internet newsgroup, can get you sued just as they can in a newspaper. In fact, you can cause more damage on the Internet because of the huge numbers of people that may see what you have to say. In case you're not familiar with the terms, "forums" and "newsgroups" are like electronic bulletin boards where potentially millions of people can read what you've posted.

So, if you post something disparaging about a person or company, just be sure that you're right. Truth is an absolute defense to a libel or slander action.

Adult material

It's really quite simple. Adult material has no place in the office.

Many employers monitor the websites employees visit. Few employers appreciate visits to places like

You also put your employer at risk of a lawsuit if you offend the women in the office who may feel that the "boys'" lunchtime visits to adult websites make the office a "hostile work environment."

As an employer, you must not permit the use of your computers to visit adult websites. The days of pinup calendars in the office are over. Sorry.


Assume that every agreement you consummate online is a legal and binding one. This is true whether it's a business deal done by e-mail, an order form you completed at , or any other type of contract or agreement. Just assume that when you click "I Accept" that it means what it says.

It still surprises me, but many people think that it doesn't count if you do it online. Wrong!

While it may be true that there may be some open legal issues about online contracting that doesn't mean that an online contract isn't a real one.

As your employees begin to surf the Net, you need to establish clear corporate rules about who can bind your company and with what limit of authority. As new opportunities to buy and contract online arise, your business will likely see an evolution from its traditional ways of doing things. You need to address this before somebody who shouldn't be spending money for the company creates a problem.


Use digital signatures in your business if you are doing substantial deals online. A digital signature is encrypted information, created by special software. You can use it like a real John Hancock to authenticate that a particular person assented to a particular electronic message. (That was a nasty mixture of computerese and legalese. It roughly translates to, you can prove who sent the message and that he or she agreed to its terms. These two things are essential elements to a binding contract.)

Remember that many contracts aren't enforceable without a signature. In case of a dispute, a court will probably find that a digital signature is as good as a "real" signature. A plain old e-mail without a digital signature is more problematic.


Be careful about what you say in your e-mail. Don't assume that only your intended recipient will read it. It can be forwarded wayyyyyyyyy too easily. I repeat, it can be forwarded way too easily. E-mails have an amazing way of flying around an office or worse, the Internet.

Even if you need a password to access e-mail, you shouldn't assume that your e-mail is private. All too often, e-mail password protection is easily circumvented, both at home and in the office.

E-mail privacy may just be as much of an oxymoron as military intelligence. E-mail is subject to civil subpoenas and criminal search warrants. Moreover, it's next to impossible destroy. Once you hit the "Send" button, you should assume that all e-mail takes on an eternal life. If you find that possibility unacceptable, then don't send the e-mail.

The most conservative view for the proper use of e-mail is that if finding it posted on the lunchroom bulletin board is unacceptable, then use the telephone.

Bear in mind that even after you "delete" an e-mail, it may still exist somewhere on your hard drive or e-mail server (the computer from which you retrieve your e-mail). E-mail also is more easily copied and distributed than paper documents because it's digital. Finally, consider the possibility that network and system administrators, secretaries and others can easily, illegally or improperly read it.


While it is true that advertising laws specifically geared to the Internet are few and far between, you should assume that all traditional advertising laws apply to the Net.

An "unfair and deceptive trade practice" or "false claim" made in your advertising can come back to haunt you whether it's in a newspaper ad or on the Web.

Internet Use Policy

This is a simple one. If your business doesn't have an Internet Use Policy (IUP), then it needs to develop one immediately.

You can't reasonably expect your employees to abide by the "rules," if they don't exist or aren't clear. What makes an IUP essential is what I said at the beginning of this column: "With computers and the Net being so new to so many, the lack of experience and common sense shows."

Your employees will make mistakes online because it's new to them too. Help your employees help you.

Have a Net savvy attorney assist you in creating an IUP. A well-written IUP will minimize your exposure to the many legal risks that going online and bringing the Net to employee desktops brings.

It's not that the Net is so treacherous because it's not. It's that common sense only comes with experience. Until the experience is widespread, you must lay out clear rules for all to follow.

Staying out of Trouble Online is republished from
Mark Grossman
Mark Grossman