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Internet LiabilitiesThe Legal Traps and Pitfalls
Introduction Fundraising Social media
◦ Trademark ◦ Defamation
Minors CAN SPAM Act
◦ E-mail Marketing
Points to Ponder
Online giving accounted for $4-6 billion in donations last year in US alone
Social networks and blogs/websites are the fourth most popular online activities
Email is falling behind Social networks as method of exchanging and sharing information
Average age of online donors is rising each year
Trends
The average gift size among nonprofits grew from $56 to $60
Online gifts are larger than the average gift from traditional channels
Online Donations
“Organizations and web designers must be aware that the traditional rules with
respect to prohibitions on providing particular services, treatment of
advertising income, sales activity, as well as lobbying restrictions still apply
to website activities.”
2000 EO CPE at 140.
Notes, Warnings, and Cautions:
Tax-exempts are not exempt from all taxes, only from those taxes that would otherwise apply to income received from activities that are substantially related to their exempt purposes.
In other words…
On-line Charity Malls◦ % of purchase price goes to charity
Virtual Storefronts◦ Section 513(c) Fragmentation Rule
IRS will review each piece of merchandise
Sale of Products on Line
◦ Trademark Seek permission Avoid using other’s trademarks
◦ Copyright Who owns the work Monitor for misuse Use symbols
Intellectual Property
Obtain Licenses from All Authors and Speakers ◦ Video ◦ Text
Applies to All Intellectual Property◦ Text, Graphics, Photos, Video
Secure Rights
Adopt a standard policy and practice for all to sign
All authors sign standard agreements◦ Obtain right to publish AND post online
Speakers grant rights to post online
What Can We Do?
Defamation◦ Comments made by others can be attributed to
organization (Cisco Systems lawsuit)◦ Protections
Federal Communications Decency Act §230 Disclaimers and terms of use Take-down policy Refrain from commenting on third-party posts Consider available screening capabilities
Social Media - Facebook
Develop club policy that addresses permissible use Monitoring Reserve right to remove content and comments,
block users, etc
Our community is an echo of our voice…we must set the tone.
Solution
◦ Antitrust◦ Defamation◦ Contributory Copyright Infringement◦ Political Activity◦ Providing or promoting “Professional” Advice
Limit Liability
CAN SPAM Act
Emails that advertise or promote a commercial product or service, such as membership in the organization or the sale of organization publications, events, etc.
Members generally excluded
What Could Be Considered SPAM?
Give clear notice of opportunity to opt-out.
◦ MUST be in every email message. Provide a functioning opt-out in every email message. This
can be a return email address or other Internet-based mechanism that is capable of receiving opt-out requests for at least 30 days after the transmission of the original message.
Further, if the recipient has opted-out, the sender may not exchange or otherwise transfer or release the email address of the recipient even within the club.
Email service protects Club from fines and other liabilities. Constant Contact, easy to use, protects us.
Compliance
Provide a valid physical postal address of the sender.
Clear and conspicuous notice that email is a solicitation
Make sure the "from" line accurately and clearly reflects the sender.
Use a valid subject line directly related to content.
Compliance Continued
Photo Subject holds rights of publicity • get release from parent or guardian before use
photo beyond consent.• consider children’s issues on Internet.
Gain rights for all future uses
Photos and Information of Minors
1. Children’s Online Privacy Protection Act of 1998 (COPPA)• Collection of PII directly from a minor (children
under 13)• Collecting and storing Personally Identifiable
Information
Reference:
1. Know when consent of the PARENT/GUARDIAN is required
2. Know when consent of the ANOTHER SUPERVISING ADULT is sufficient
3. Know when no parental/guardian consent is required
4. Disclose your privacy policy
5. Know the proper use of online communications
6. Allow for refusal to participate at any time
Nielsen’s “Policy regarding the collection of PII directly from a minor”
Obtain from everyone in film/video. Make sure you have all people and possible, future rights
needed. Photo participant release; Photographer release
Privacy Rights: separate from commercial use (invasion of privacy could apply to putting someone’s picture on the Internet).
Obtain Appropriate Releases:
Draft a privacy protection policy:What personal information is being gathered about userHow the information will be usedWho the information will be shared with, if anyoneChoices available regarding how collected information is usedSafeguards in place to protect the information from loss, misuse, or alterationHow user can update or correct inaccuracies in his or her information.Provide mechanism for consent, access and correction.
Solution
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