Blogger/ Business with Online Presence
If you’re a blogger, “e-tailer” (e-commerce/online retailer), or a traditional retailer or other business with a web presence (which will probably cover almost all businesses), then this page is for you. This page is a guide to laws about the internet that apply in California. As always, speak to a lawyer before taking any major actions (or decisions not to act) based on this information.
HERE’S WHAT YOU SHOULD KNOW ABOUT THE LAW FOR BLOGGERS OR BUSINESSES WITH AN ONLINE PRESENCE IN CALIFORNIA
Can I send people unsolicited emails?
You CAN send unsolicited commercial emails, but the email must:1CAN SPAM Act, 15 U.S. Code Chapter 103
- identify that the message is an advertisement
- include a valid, physical address of the sender
- provide a way to easily opt-out of future emails (like an “unsubscribe” link). Once the recipient opts-out, you can’t email them again unless they explicitly give you permission.
Spam/Junk email: You can’t send deceptive or abusive commercial emails.2CAN SPAM Act, 15 U.S. Code Chapter 103
2. Online Marketing & Advertising
Do laws against false or misleading advertising apply to the internet?
Most of the laws against false or misleading advertising apply to the online world as much as to the real world. But some of the ways they apply may be surprising, for example, even “liking” someone else’s comment on your Facebook page may be seen as you adopting or holding that statement. If the comment is false or misleading, it could get your business in trouble.3FDA letter to Tirosint
What about rules against marketing certain products to children?
Websites may not market certain products to anyone under 18, such as alcohol, tobacco, or weapons.4See full list at B&P 22580(i)
3. Reviews and/or endorsing products or services
Do I need to disclose my relationship to products I review or endorse?
If you have an affiliate relationship with a company (they give you a cut for sales you direct to them) and you publish a review or endorsement of that company’s products, you must disclose that affiliate relationship.5see FTC guidance on testimonials and endorsements
Can I sue Yelp for defamatory customer reviews?
Can I prevent my customers from writing any negative reviews about my business?
No. A business cannot prevent a consumer from sharing their “honest opinions” about the business’s products or services.6Consumer Fairness Review Act But that does NOT mean a reviewer can post things that are harassing, abusive, or false or misleading.
4. Privacy and the Internet/Social Media
Personally identifiable information includes any of the following: first & last name, address, email address, phone #, Social Security #, any other contact information.
If my website gets hacked, and someone gets users’ personal information, do I need to notify users about it?
Yes.8Civil Code Sec 1798.82 Companies and websites must notify users when they experience a data breach and someone steals personal information, including
- name in combination with an account number9including social security #, Driver’s license #, bank account #, credit/debit card #, medical information, or health insurance info
- username or email address, in combination with a password
Posting nude photos of someone on the Internet
It is illegal to take nude photos of someone without that person’s consent (unless the subject is nude in public).10Cal Civil Code Sec 1708.8(b) It’s also illegal to pay the person who took the photos, knowing that the pictures were taken in violation of the person’s privacy, and then post the pictures online.11Cal Civil Code Sec 1708.8(f)(1)
- It is NOT illegal for a different person to repost the photos once they have already been posted.12Cal Civil Code Sec 1708.8(f)(3)
Privacy for children under the age of 18
For children under 18 who are registered users of a site or app, the site/app must give the child the ability to remove (or to have the site remove) any content or information they post on the site/app.13Business & Professions Code 22580, effective Jan 1, 2015 The website or app does NOT need to provide this option if the content or info was posted by someone else, or if the content or info is “anonymized” so that it does not identify who posted it or who the information is about, or if the child was paid for the content.
Note: This does NOT mean the site/app is required to collect age information from its users.
Privacy for children under the age of 13
Websites that get any information from children under 13 must:14Children’s Online Privacy Protection Act, found at U.S. Code Title 15, Section 6501
- notify parents directly before collecting personal data from children, and obtain their consent (parent can stop consenting any time)
- implement procedures to protect kids’ personal info
5. Jamming wi-fi or cell
It is illegal for any person or company to jam, block, or interfere with another’s Wi-fi or cell signal.1547 U.S.C. Sec 333, also see FCC’s jammer enforcement
6. Copyright & the Internet/social media
Do I have rights to content I create and put on the internet or social media?
In general, yes. Copyright law applies fully to the internet, but it does get tricky, particularly for social media. The original content you create and post on the internet and social media, including blog posts, status updates that you write*, or photos/videos that you have taken or created**, is generally your property and you own the copyright. This means you get to decide what to do with the content, and what others do or don’t do with it.
*Writings need to be a substantial length to be given copyright protection. There is no exact number of characters or words to qualify; a tweet probably is too short, but it’s not impossible to copyright a tweet.
**You generally own a photo when you have pressed the button to take the photo. It doesn’t matter if you are in the photo or not. However, make sure the subject matter of the photo doesn’t violate privacy law.
Can I post someone else’s picture, video, or writing on my social media?
Simply retweeting/clicking “share” under a Facebook post is most likely fine, as it can be implied that the creator granted permission by putting it on social media (and many social media Terms of Service say that by posting something, a user grants others a license to share it).
But if someone has NOT put their work on social media, you should probably not do it for them. You can’t use someone else’s content without their permission, unless it falls under “fair use“. If you can’t get the creator’s permission, stating who created the work (“attribution”) and linking to the creator’s website is a very good idea. Although even doing this, your post could still violate the creator’s rights. But it’s up to the creator of the content to decide whether to enforce their rights.
What should I do if I see a website stealing my copyrighted material?
You have the right to require that any website that displays your copyrighted materials without your permission quickly remove it from the site.16Digital Millennium Copyright Act Find out when you “own” material, and more at our Copyright page.
To get your copyrighted material taken down from a website, you simply need to send the website or host of the website a “DMCA Takedown Notice.” See here for details on takedown notices.
Help! I think I’ve been hacked! What do I do?
If you have evidence of a hacking and can identify who did it (or is continuing to do it), the law allows you to get authorities to take immediate action to disable the hacker.17Computer Fraud & Abuse Act Contact local law enforcement or the Internet Criminal Complaint Center (see below).
8. E commerce
Do I need to charge my customers any sales tax for their purchases?
The current rule is that you only need to charge sales tax for purchases that are shipped to a state where you have any sort of “physical presence” such as a retail store, warehouse, office, or where the owners reside.18Quill Corp. v. North Dakota, 504 U.S. 298 (1992)
For example, if you are the sole owner of an e-commerce site, and you have no brick and mortar locations or any other physical presence, but you live in California, you would only need to charge sales tax for shipments made within California. If you shipped something to, say, Arizona, you would not need to charge any sales tax.
Related story: This rule may or may not be changing by June 2018 if the Supreme Court decides to change it through a currently pending case.
Are there any rules on when I need to send out a product?
If you sell products on the internet, you must ship the goods within the time frame you state (or within no more than 30 days), otherwise the customer has the right to cancel the purchase.19Federal Trade Commission rule found at Code of Federal Regulations, Title 16, Part 435
What is cybersquatting? Cybersquatting is when someone buys a domain name that is the same or similar to someone else’s trademark, for the purpose of taking financial advantage of that trademark. For example, buying the domain “campbells.com” to get web traffic from people looking for the soup brand would be cybersquatting.
Is cybersquatting illegal? Yes, unless it is done for non-commercial purposes, such as political activism.2015 USC sec 1125(d) The penalty for cybersquatting involves potentially millions of dollars in fines.
10. Free Speech
You should generally know about free speech rights and laws.
11. User generated content on your site
Am I legally responsible for the comments or posts that other people make on my blog or website?
Generally, no, you would probably not be held liable for posts, comments, etc by others which may violate various laws.21Communications Decency Act Section 230 For example, if someone posts illegal threats of violence, or defamatory statements, the website or other online platform would generally not be liable for these.
Specifically with regard to your users’ violation of intellectual property, such as copyright or trademark, you would be protected as long as you comply with DMCA takedowns (see above for more).
12. Internet Service Providers & Net Neutrality
Can my internet service provider (ISP) charge me different rates based on the websites I visit or even slow down or block certain websites?
As of December 14, 2017, yes they can. Before this date, the law in place was based on “net neutrality” which prohibited internet service providers (such as cable or cell phone company) from treating data differently based on the content. But on December 14, the Federal Communications Commission decided to repeal net neutrality and allow ISPs to have more control over the content consumers can access. ISPs can now create pricing structures similar to cable TV packages, or simply make it much slower and more difficult to access (or even block) certain websites or data.22https://www.nytimes.com/2017/12/14/technology/net-neutrality-repeal-vote.html
I have a website. Can an ISP charge me for the right to allow its customers to access my website?
As mentioned above, because the Federal Communications Commission got rid of Net Neutrality, now ISPs can force website owners to pay to ensure that the ISP’s customers can access the website. Or they can even block your website altogether!
EXERCISE YOUR RIGHTS
- If you believe you have been hacked, contact local law enforcement (use non-emergency number unless your physical safety is at risk) and/or file a complaint with the Internet Criminal Complaint Center
- File a complaint about wi-fi or cell signal jamming
- Find a social media lawyer, privacy lawyer, or copyright lawyer
References [ + ]
|1, 2.||↑||CAN SPAM Act, 15 U.S. Code Chapter 103|
|3.||↑||FDA letter to Tirosint|
|4.||↑||See full list at B&P 22580(i)|
|5.||↑||see FTC guidance on testimonials and endorsements|
|6.||↑||Consumer Fairness Review Act|
|7.||↑||California Online Privacy and Protection Act, Business & Professions Code 22575-22579|
|8.||↑||Civil Code Sec 1798.82|
|9.||↑||including social security #, Driver’s license #, bank account #, credit/debit card #, medical information, or health insurance info|
|10.||↑||Cal Civil Code Sec 1708.8(b)|
|11.||↑||Cal Civil Code Sec 1708.8(f)(1)|
|12.||↑||Cal Civil Code Sec 1708.8(f)(3)|
|13.||↑||Business & Professions Code 22580, effective Jan 1, 2015|
|14.||↑||Children’s Online Privacy Protection Act, found at U.S. Code Title 15, Section 6501|
|15.||↑||47 U.S.C. Sec 333, also see FCC’s jammer enforcement|
|16.||↑||Digital Millennium Copyright Act|
|17.||↑||Computer Fraud & Abuse Act|
|18.||↑||Quill Corp. v. North Dakota, 504 U.S. 298 (1992)|
|19.||↑||Federal Trade Commission rule found at Code of Federal Regulations, Title 16, Part 435|
|20.||↑||15 USC sec 1125(d)|
|21.||↑||Communications Decency Act Section 230|