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I am looking for a lawyer that deals with cyber / internet law. As a website owner my concern is if my site was ever hacked

Rockville Centre, NY |

I am looking for a lawyer that deals with cyber / internet law. As a website owner my concern is if my site was ever hacked my advertisers on my website would file a lawsuit against me.

Attorney Answers 6

Posted

There are attorneys like me who specialize in this sort of thing. You can find them through a search for Computer Fraud or Internet attorney on this site.

The author is a Maryland attorney; however no answer given on Avvo is intended as legal advice or intended to create an attorney-client relationship. Dan's expertise lies in the electronic entertainment (video game) industry, as well as complex internet law issues, electronic free speech, entertainment law, copyright and trademark law, and computer fraud. He primarily represents game developers and founders of emergent internet technologies.

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Posted

Could you elaborate about the relationship between your advertisers and your site contents? Do you have a duty to protect information about your advertisers?

Most sites serve information to users, and if advertising is involved they serve ads either randomly or based on independent cookies. The only duty that the host would have to the advertiser is to serve ads as agreed.

If the data you serve is hacked, your duty is to whomever that data belongs to. Unless you have a non-standard model with advertisers, like processing orders for them, I cannot think of a duty under which anybody could prevail in a suit.

Please elaborate a little about the relationships. If there is anything proprietary or if you think you may be violating laws, you want to find an Internet attorney and establish an attorney-client relationship; something we cannot do on this site. I usually suggest that people seek a local attorney, but virtual businesses are a little bit different and you can widen your search area substantially.

I am a lawyer, but I am not YOUR lawyer unless we have a written representation agreement in place. This answer DOES NOT ESTABLISH an attorney-client relationship. Answers on Avvo are not intended to replace the advice of an attorney who has conducted a complete intake interview. If any statement I make may be construed in a fashion that violates any laws or ethical guidelines, you may rest assured that I intended it to be construed otherwise.

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2 comments

Asker

Posted

Here is the relationship. I contact dentists to advertise on my site. This is not an adwords type program. This is where I am deadline with the actaul dentist themself to create a banner ad for them to put on my site. The main concern is if the site is hacked and the dentist banner ad is re-directed to another website other than their practice I would get a potential lawsuit for a large sum of money.

David W. Raskin

David W. Raskin

Posted

Understood. I think you definitely want to confer with an experienced internet attorney, such as Mr. Adli. While I have 30 years in IT, I've only recently been admitted to the bar. I will assume that you currently have an agreement that you sign with the advertisers. It should have a "Choice of Law" clause in it, and you want to make sure that the attorney you consult with is versed in that jurisdiction. I assume that you are technically doing everything that is reasonable to protect the data. Off hand, I would start by looking at your agreement and see how well it spells out what you are doing for security and what limits you spell out for your liability. Because there are many aspects to this, it is reasonable to explore it with somebody with whom you feel comfortable. You should be prepared to show all of the agreements you have with your customers, and if you're not hosting yourself you should show all agreements you have with your host. Any equipment you are using is important, as are the names of your DNS providers or your DNS software. Agreements you have with them would be important as well. Finally, if you have business insurance, a copy of the policy will be useful in identifying something that would preclude coverage. Good luck!

Posted

This forum is for the purpose of asking questions to attorneys. You can do a search on the Avvo site for attorneys such as myself whose practices are focused on Internet law.

This answer is provided for informational purposes only, does not create an attorney-client relationship, and is not to be relied upon as legal advice or applied to specific situations. Legal advice is provided only upon execution of a written retainer agreement and after a comprehensive consultation in which all relevant facts are discussed and reviewed.

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Posted

Your concern doesn't contain much information, but this sounds like a cyber security issue. If you have concerns about data security or liability from being hacked, it's wise to obtain cyber insurance addressing your concerns. Not every insurance agent is familiar with insurance related to IP and Internet liability, but with a little research you should be able the find right agent in NY.

In addition to the appropriate insurance, you should also have a written agreement with your advertisers which limits your liability should your site become hacked. It is also wise to have a limitation of liability clause, written by a true Internet lawyer, on your website's terms of use.

Finally, you should ensure that your IT team, or consultant, is taking reasonable steps to ensure the security of your website.

***Please note there are many other steps you can take as a website owner to limit liability. You should consult with an Internet lawyer who will able to make specific recommendation based on a comprehensive understanding of your website and business.

This Avvo.com answer is to provide general information and a general understanding of the law, not to provide specific legal advice. No attorney/client relationship is formed, unless you and I enter into a written retainer agreement.

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2 comments

Asker

Posted

There are two main concerns. Either my site is hacked or an act of a rogue freelancer that I have worked with in the past or present. The concern is this my site will have banner ads of orthodontists linking to their homepage. The concern is that either a hacker or feelancer would put up inappropriate content, adult content or hateful content on the site or re-direct the banner ads to this type of content. Please advise.

Christopher Michael Taylor

Christopher Michael Taylor

Posted

First, you should consult with an Internet lawyer via telephone, in person or Skype. In an interactive conversation, a lawyer will be able to ask specific questions to obtain more information. Second, notwithstanding any legal issues, this also sounds like an IT problem. You should find an IT professional who is capable of securing your site. Finally, you should think twice about working with known rogue freelancer(s).

Posted

You have two modes of protection. One is cyber-security insurance. Two is to create agreements with advertisers and web-site users that immunize you from liability, and require that both advertisers and other users of your web-site assume the risks associated with hacking. If your lawyer develops clear terms of use for users of your web-site, and if your agreements with advertisers provide you with appropriate legal protections, this should not be a major problem

One further point---Congress has provided web-sites operators with immunity from liability for information posted by others on their web-site, provided that such web-site operators comply with various formalities. For example, the Digital Millennium Copyright Act provides "take down notice" procedures which provide immunity from web-operates who comply with take down notices by removing materials that infringe copyrights owned by others from their web-sites. Your terms of use need to make clear that you intend to comply with the DMCA and therefore, you will benefit from the immunities provided by that statute. Likewise, your terms of use can effectively immunize you from suit on most issues relating to hacking.

As my colleagues note, the devil is in the details in every situation---anyone who operates a web-site such as this should work closely with intellectual property counsel. This web-site is not a good substitute for retaining and working with legal counsel. I haven noticed over the years that many Doctors and Dentists think they can out-smart the lawyers, and handle their legal affairs on their own. I have made a career of working with Doctors---and I can tell you war stories about dozens of my medical doctor clients who got themselves in big legal trouble because they thought they were smarter than the lawyers and could do without them. Please don't make the same mistake---and don't use this web-site as a substitute for retaining legal counsel.

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15 comments

Asker

Posted

Would this cyber liability insurance cover the unauthorized act of a freelancer? The freelancer would be either a web designer or programmer that I use to work on the website. If a freelancer ever thought that they were not paid fairly they harm the site in turn end up harming my business.

Maurice N Ross

Maurice N Ross

Posted

You would need to review with with your insurance broker---but my understanding is that cyber liability insurances does cover damage caused by disaffected employees or "freelancers". This is also very expensive insurance---many web-site owners "self-insure" for that reason.

Asker

Posted

Let me ask you this because you are familiar with the people who would be dentists on the site which would be mainly dentists. Right now I have a 1M dollar cyber liabity policy. Here is the problem is that enough? If one of these hacks or rouge employee events occur these dentists can potentially say as a result of an ad on my website I have ruined there reputation and potentially file a lawsuit for much more than that? I wold greatly appreciate how high of coverage do you think I should consider 3M, 5M, 10M etc...

Bruce E. Burdick

Bruce E. Burdick

Posted

Ask an insurance salesman and then, if you don't trust that salesman, get several more quotes.

Bruce E. Burdick

Bruce E. Burdick

Posted

Asker, you are right about Doctors thinking they are smarter than lawyers. I have 3 in my immediate family who have learned that is not true the hard way and then come to me for help. Of course, the reverse is true too, many lawyers think they know more medicine than doctors only to find out otherwise.

Maurice N Ross

Maurice N Ross

Posted

I am not an economic expert but 1 million is obviously too low, and 5m might also be too low given the experience we see with judgments in law suits.

Asker

Posted

Please clarify what you mean by judgement in lawsuits? Are these judgments anyway related to banner ad advertising on a website? Also insurance companies do not have 100M policies for liability for a start up. What ball park number granted the business model would you say is adequate

Bruce E. Burdick

Bruce E. Burdick

Posted

I have two dental clients with Internet businesses, one with a $5M business, another with a $100M business. My view is you want about $5M-$10M, the higher the better. You might trade a higher deductible to get a bigger catastrophic limit, depending on your solvency and finances. See an insurance salesman. If your business gets big, reconsider getting higher limits.

Asker

Posted

Are you talking $5M-$10M of general liability, cyber liability, bushiness insurance or amount for each? At this moment I have $1M general liability $1M cyber liabilty, $1M media liability. My company has under 100K in revenues at the moment. However my concern is that there was a hack or unauthorized act of a freelancer and I face a major claim from a dentist that advertises on the site saying you have damaged my business as a result of advertising on my website. There will be about 5 dentist that advertise per site. I will have these risk factors in my terms of service. However I am concerned if something ever occurred they would be treated as if they did not exist.

Maurice N Ross

Maurice N Ross

Posted

The amount of revenues that you have is irrelevant to determining the amount of insurance you need. If a Dentist's business is harmed because of the happing, you could be responsible for the value of that business which could be millions.

Maurice N Ross

Maurice N Ross

Posted

One more point---with due respect, you are making a huge mistake if you continue to rely on this web-site and others like it rather than retaining counsel. If you have 100k in revenues you have enough cash flow to retain counsel.

Bruce E. Burdick

Bruce E. Burdick

Posted

Right, my point was that I know of a dental business with $100M in revenues. If you destroyed one like that, $1M would be gone in a week if you hurt them, so even $10M might not suffice. You have to take a risk analysis together with your insurance agent. What your revenues are is not determinative, it's how much your actions damage the other party. If you have a Yugo and run into a Lamborghini and it's solely your fault, you pay for a Lamborghini (and the Yugo). Get off here and get a lawyer. As was just said, with $100K you can afford an attorney. Indeed, you can't afford not to have one.

Asker

Posted

I never said I had 100K in revenues. Right now my company is just a start up which could be forecasting 100K revenues in 2013. Current revnues are under $10,000. I have spent money on hiring lawyers to prepare terms of service, privacy policy and copyright policy. I have spent money on general, media, cyber liability insurance policies. Yet doing all of the above I question if I have a business model that would work. My hope is for dentists to pay a low monthly rate 50-150 a month for advertising and have many sites across the us to generate volume. However the claim of millions of dollars against me concerns me as I only have $1M of insurance at the moment and I am looking for a nominal amount of money per month. I would have a blog site that talks about dental related issues and sell advertising on the site. I have tried my best to find ways to secure my sites ssl encryption, daily malware scanner, and premium dns. Yet It sounds like if the slightest thing ever went wrong I would have regretted ever starting this business in the first place. Despite having all the risk factors in my terms of service.

Maurice N Ross

Maurice N Ross

Posted

There is risk in everything you do. Every time I agree to represent a client I assume a huge risk that things could go wrong. The question is what is the likelihood that things will go wrong. There are thousands of web-site owners who risk everything, operating without insurance, but who do very well. The key is to lay the proper legal foundation. It sounds like you may have retained counsel to do so, at least in part. Frankly, the most important risk here is intellectual property infringement. The first priority would be to get a clearance opinion that you could operate this web-site without violating IP rights of others. If you have not yet done so, then you have not taken the most important step to protect yourself. The risks from hacking, while real, are very minor compared to the IP law risks. Also, you need to set up the appropriate corporate structure to immunize your personal assets in the event something goes wrong. I can tell by your questions that you have made one big mistake---you have not hired legal counsel to be your point person in risk management. Instead, you seem to have assigned counsel only very minor, discrete tasks, perhaps for budgetary reasons. This is not a good approach to working with legal counsel. Just as I want my primary care physician to know about all my health issues, your primary IP/business counsel needs to supervise your entire legal situation. If you do not have adequate resources to work with counsel on that basis, then I do agree that the risks of operating a web site such as this may not be worth it.

Asker

Posted

I will be looking to add legal counsel to do a trademark search for my logo. Also limitation of liability discloses and hold harmless agreements will be created. I will look into your suggestion about a clearance opinion. I have a general liability policy that has $1M of advertising injury which says trademark or copryight acts are covered. If I were to increase one of my insurance policies which one would you say is the most important. General liability, media, cyber liability? Or is there another type of insurance that I am missing?

Posted

I understand your concern having represented website operators and spoken on cyber security in a number of media outlets and through my own radio show -- Cyber Law and Business Report. You probably should consult with an internet lawyer familiar with these topics and the evolving nature of cyber security. If you want to lose sleep at night, there is a great report on the Russian Underground 101 published by Trend Micro that details how cheap cyber crime has become.

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