The Why Answers the What

The other day I was asked why someone who has been online for years needs a privacy policy, website terms of use or a social media policy.  I searched the web for a concise explanation of why these things were important and found much more about what to include in your policies rather than why they are needed in the first place.  In fact, there are whole sites dedicated to publicly-available policies, so why not cut and paste? 

Before you implement a policy, or take cut and paste shortcut, rather than asking yourself if you need these policies or whose you should copy, you should ask yourself “Why?”  I’ve seen supposedly sophisticated internet marketing websites where the policies are obvious cut and paste jobs resulting in a legally-nonsensical hodgepodge.  These shortcuts are likely to get you into more trouble than they can prevent.

Generally speaking, websites fall somewhere on a spectrum of interactivity.  On one end is the local restaurant down the street, let’s call it Karla’s, whose website has the location, the hours and a menu.  The next site may have links to other sites.  Your B2B site may ask for information to generate quotes.  Then, there are the sites that allow for comments, like your local newspaper, and include advertisements of others.  Then, we go to the social media sites that allow for and encourage user generated content all the way to your e-commerce sites whose sole purpose is to sell your stuff. 

Yes, Amazon, Facebook and Google have spent lots of time and money on developing their policies and are on the far end of the spectrum.  Their motives probably do not fit your specific goals and the answers to their why question is likely much different than yours.

Privacy Policy
Between terms of use, privacy policies and social media policies, for even the most static of sites, the privacy policy is the most important.  The others take on more importance the more interactive you get, but everyone should be most careful with their privacy policy because it is likely going to be the subject of the most scrutiny.

For the most basic of sites, like Karla’s, I often hear that we do not collect any information, so I don’t need a privacy policy.  Or, I look and see a one line statement that we don’t share any information with anyone.  Are these statements actually true?  Does Karla’s have an outside internet marketing firm?  If they are worth their fees, then they collect data on the website visitors.  They are an outside person with whom you share information.

If your site collects lead, do you ever send any of those outside the company?  Wouldn’t that mean you share personal information with others? 

You are not required to have a privacy policy in the United States, but if you do, the Federal Trade Commission will want to know that it is clear and accurate.  Prominent retailers who cut and pasted their privacy policies have been fined by the FTC for having inaccurate privacy policies.

If you are doing business in Europe (and your site is at least available in Europe), then you have to consider the E.U.’s more stringent privacy policies.  Even if you don’t target Europe, you may make sales there.  Then, your privacy policy should comply with E.U. law as well.

The FTC is paying special attention to the most popular sites like Facebook and Google.  Karla’s restaurant that focuses solely on a local neighborhood, on the other hand, may be better off not having a privacy policy rather than having one that is inaccurate. 

The terms of use
As the site gets more and more interactive, the more important the terms of use become.  Karla’s restaurant would be wasting its time and money on detailed terms of use.  For everyone else, it can only help—as long as it done correctly and for the right reasons.

Once again, you have to ask yourself, why are you online to determine the breadth of your terms of use.  Even Karla’s may want to let its visitors know the appropriate use of the information provided and disclaim the accuracy and timeliness of the information on the site if it is not updated on a regular basis.  Did Karla’s have to change some prices because of the sudden rise in tomato prices?  A simple disclaimer in the terms of use could prevent a specious lawsuit from someone claiming they were defrauded by the now inaccurate menu on the website.

Going the next step of interactivity, If you provide links from your site to other sites, you will want to make it known you do not guarantee the links, the other sites or endorse the other sites lest you face trouble for the actions of others. 

Once you allow user generated content or even comments, you will want to consider copyright and defamation protections.  Finally, conducting e-commerce on the site demands the use of click-wrap agreements to enforce the terms and conditions that will be vitally important, when (not if) you ever have a dispute.

Social Media Policies
Of the three, the social media policy is the most tailored for the company’s social media vision.  As a lawyer, I focus mostly on the risk mitigation.  Can you reduce risks with a social media policy?  Yes, if you have a policy and apply it.  If the social media policy is something on your to do list, but then you ignore it, however, you may actually expose yourself to more liability.  That is why the policy should be just as much about why as what so that everyone buys in.

For example, Coca-Cola has a good social media policy.  They call it their Online Social Media Principles.  You can review it online to get started on ideas.  I do the same.  Having spoken with one of their lawyers about this policy, it was a team effort.  Legal was one part of it, along with management, HR, product development and others.  Hewlett-Packard’s “Blogging Code of Conduct” went through the same process.  I am guessing you are not Coca-Cola or HP and have different issues so I don’t suggest copying these policies verbatim.

Are you trying to encourage your team members to get involved in social media and promote your company?  Can they do it while at work?  Are you a company that thrives on discretion and that is the last thing you want?  Are you focused on products?  B2B?  B2C?  Services?  Do you have designated spokespersons and official social media channels?   Do you already have a personnel manual that should be incorporated into your social media policy?  The social media policy should make it clear how employees should balance creative expression and promotion with responsibility.

It also needs to address legal.  In one case, the Federal Trade Commission cited to the company’s social media policy as justification for dismissing an investigation about unlawful online endorsements.  Social media raises certain legal issues that should be addressed and legal has a role in all of these.  Your policy, however, will only be successful, if the key players buy in—even at Karla’s restaurant.