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Do I need to hire a lawyer to write my websites Terms of Service?

Mitchell, IN |

I own a community which grew from the remnants of a community I co-owned, our owner left us to hang and I took us to a new website and server, I have concerns about retaliation from both our old owner and the people who support him. (Some people felt I should allow the community to die out rather than salvage it.) Because of mentions of old information and the feelings of the split community there are a great deal of references to the old owner all across my forum as well as information pertaining to our old site. I have our database which I plan to put up an archive of our old forums from as well. Is a TOS written myself sufficient or would it be better to hire someone to write one based on the requirements of local laws for both myself and my host?

Attorney Answers 3

Posted

Are You Planning on Opening a New E-Commerce Website?

There is much you need to know as you begin your new business. I suggest you do not attempt to write your own legal policies. This is not where your training and background lie, and though you are probably as smart as an attorney, you do not have their experience.

Below is a checklist for legal issues I use for new e-commerce clients.

1. Business Model – Is your idea viable as a web based business?

2. Business entity - Are you going to be a C corp, a sub-S, an LLC or a sole proprietorship?

3. Terms of Service - This is your contract with your visitors and is the most important item for any e-commerce site. A little work here brings big dividends in the future.

4. Privacy Policy - Every e-commerce site needs a privacy policy!

5. FTC guidelines - The FTC has been regulating business advertising for almost a century. All of their advertising guidelines apply to e-commerce sites.

6. Domain Name issues? Is your name available. Can you create a Trademark?

7. Trademark - Do you have a brand name free from conflict? Should you start with just common law rights? Should you register the mark, and when?

8. Copyright - If it is on the web, it already belongs to somebody. Did you buy a license for the images you are using?

9. Do you need a DMCA policy?

10. Web Site security issues?

11. Do you need and have an EIN? You can get that for free.

12. Do you need an arbitration clause?

13. Do you have employees? - If so you need written policies regarding their authority and use of the internet.

14. Do you know the difference between a "browser wrap" and a "click wrap" and which do you need?

15. Are you abiding by the Child's Online Privacy Protection Act (COPPA)rules?

When I discuss this list with clients other issues arise. Finally, I always discuss with my clients their need for good accounting services. An accountant's advice as you start up can save you many dollars in tax that you might not save if you wait to speak to an accountant until your first tax return is due.

I hope this list will give you pause to think about those issues for which you might need to seek professional advice.

You may want to discuss your situation with a lawyer in more detail. Most lawyers on Avvo, including myself, offer a free phone consultation.
__________________
Andrew M. Jaffe
Attorney at Law
Practice Limited to E-Commerce and Internet Law
attorneyjaffe@aol.com
330-666-5026 www.netlaws.us

This post is provided for general informational purposes only and is not intended to be legal advice specific to you. This general information is not a substitute for the advice of an attorney in your jurisdiction. The attorney client relationship is not established by this post.

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Posted

You know the answer!

And you need to hire one because there are undoubtedly issues you have not even realized and because you seem headed for a legal conflict no matter what you do and you need to be in the best position for a lawyer to defend you. Wouldn't it make sense to allow that lawyer to set the TOS in the best manner for the best defense?

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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3 comments

Bruce E. Burdick

Bruce E. Burdick

Posted

See a legal guideline on this at http://www.avvo.com/legal-guides/ugc/checklist-for-starting-a-website

Asker

Posted

What sort of lawyer would you advise I seek? There are so many specializations and my issues cross a number of specialties from non profit to intellectual property and issues specific to running things over the internet, as well as international users.

Maurice N Ross

Maurice N Ross

Posted

Asker, you need an intellectual property and internet law lawyer, which is what Bruce and most of us do. Further, you don't just need a lawyer---you need a law firm. For example, my firm has specialists in various areas of the law---from IP and internet to corporate law, taxation, discrimination, litigation etc. It sounds like you will need all of these areas of expertise---which means you need to hire a law FIRM not just a lawyer.

Posted

It takes lawyers many years of training and experience to craft appropriate terms of use, privacy policies, and DMCA/intellectual property policies. You cannot possibly do an adequate job of drafting these without experienced legal counsel.

Further, with respect, this sounds like a situation that is ripe for litigation. You have a lot more to worry about here then terms of use. You need to take steps to protect yourself and your new web-site from allegations that you are violating copyright, trademark, right of privacy and right of publicity laws. You also need to structure your operation so that you can take advantage of the federal immunities provided by the DMCA, Section 230 and others. When you operate a web-site, you engage in publishing and this is not an undertaking for amateurs---you have all of the risks and liabilities facing any other publisher. If you want to continue to operate this web-site amidst these conflicts, you need to retain counsel to assist you to lay the proper legal foundation. Otherwise, the financial risks are very substantial.

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