One cool sunny day, a webdesigner finishes up he latest creation. The site is perfect and the client has been a dream to work with (this is my dream world, let me enjoy it for a minute :p). The client loves the site and it's set to go live the following day.

Ten days later the web designer is being sued for offensive content.

A thousand miles away, another webdesigner is awaiting trial for "threatening" content. The site containing the threatening content was one he only maintained, but did not create.

Are webdesigners liable for the content of the sites they create?

If a webdesigner takes over a website they did NOT create, and are unaware of the content, should they be liable for what was already written?

"The webdesigner works on behalf of the client, who provides the content." to quote a good friend.

While this is true, the designer also has the right to refuse to post the content, and/or edit the material. However, the client does have final say.

So, who's responsible?

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That is a great subject.
I am currently being sued by a client that I built a demo e-commerce site. Reason being I also maintain a similar site for another fragrance related site and I have also had my own fragrance website for over 3 years. She claims it is conflict of interest to maintain or build or promote more than one antique or perfume bottle website. I say it is restriction of trade. She paid my out of pocket expensese of 300.00. She ended up with 18 pages of website- minus the shopping cart. I have to hire an attorney to defend myself. $$$$$. She has an attorney "boyfriend".
ARG!!
Any and all comments are welcome.

Cyber Gypsy
my site http://auntjudysattic.com
site I builte for client http://antiqueperfumebottles.us
site I maintain
http://paradise-co.com

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CyberGypsy
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I'm not a lawyer (nor do I play one on TV) but it seems to me that if you don't have an exclusive WRITTEN agreement with her you should have no problem. I wouldn't build another site for a company in the plastics industry (my full time employer would have a problem with that)...But I am working on a website for an architect friend of mine...I'm hoping that all of his architect friends and builder friends see it and want me to do some work for them.

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Hello wenwilder,

it would be nice and interesting to know exactly what was considered offensive in one case and "threatening" in the other case.

Could you provide some details?

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I cover this subject in all contracts I have for SEO and web design work and would warn that everyone does the same.

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I have talked to a few other designers while waiting for my "court date". There is a presedence set that says the code belongs to the programmer. beene copyright law is what to lookup. http://www.bitlaw.com/links/primary....dure%20Manuals is a great website with a lot of information.
Of course it is all up to the Judge and if you don't like his decision you can spend more money and appeal. It is called intelectual property. As for offensive materiel!! Didn't they give you the content. I have a disclaimer and everthing spelled out on my website but that is not enough.
You have to make the cliet sign contracts and disclaimers. I am NOT doing any more work for anyone with out them signing a disclaimer.
What a mess it's become.

Yes, I like antiques and pet sites. I was hoping to specialize in them. I didn't ever think that specializing was conflict of intrest. Maybe I should sue my eye doctor for having other patients with sick eyes. It takes his attention from my eye problems. (Just a sick example).

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CyberGypsy
http://www.artmatrixwebdesign.com

Two points here...

1) As a professional, wouldn't you review any website that you are asked to make changes to in order to give a bid for the work? If you did this, then one should have some idea of what the content of the site is.

2) We have clearly stated in our design contract the following clause that protects us from just such actions:

Illegal use
The CWS Network may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes, without limitation, material protected by copyright, trademark, trade secret or other intellectual property right used without proper authorization, and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws.

Laws are different in different countries, and you need to be aware that you are working ona global stage. I would suggest that web developers and hosters contact an attorney to develop an accepted use policy to include in web host and design contracts. - I am not an attorney, check this out for yourself, I am just passing along what we have in place as an example of one possible solution.

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Also... a third note about exclusivity.

Make sure you have something similar to this in your design/hosting contract as well:

Agreement Non-exclusive

32. The Customer acknowledges that FIRM NAME is providing Services to the Customer on a non-exclusive basis and that FIRM NAME may provide services of the same or a similar nature as the Services to any other party.

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Do you have Terms & Conditions that your customer must agree to before you proceed with the work?

I have extracted a few from my list...

Clients are required to ensure that the content of their website meets all current Australian legislation regarding publications.

The client shall further indemnify EWS in respect of any claims, costs and expenses that may arise from any material included in their web-site by EWS at the client’s request.

EWS reserves the right not to include any material supplied by the client if EWS deems it inappropriate or offensive.

The client will obtain all necessary permissions and authorisations in respect of the use of all copy, graphics, registered company logos, names and trademarks or any other material supplied by the client to be placed on the web-site by EWS.

Supply of abovementioned material by the client shall be regarded as a guarantee by the client to EWS that all such permissions and authorisations have been obtained.

No responsibility will be accepted by EWS for damages to or losses incurred by the client from the use of material for which the required permission or authorisations has not been obtained.

All original graphics designed and supplied by EWS, remain the property of EWS until the client's account has been paid in full, at which time ownership and copyright of said graphics will reside with the client.

All JavaScript, Flash and Database management algorithms etc., not designed specifically for this web site, will remain the property of EWS.

I also hand over Copyright to my customer when the account is paid and provide a CD with all the site files on it. For Flash etc only the object code, unless they pay accordingly. My customers are free to go to any other web designer for further design work and maintenance of their site. My repeat business is based on my service levels and customer satisfaction. I have never lost a customer.

Bruce...
http://www.engadineweb.com.au
Sydney

Hey, Cyber Gypsy.

When you hire your attorney, make sure he knows about and/or pays a visit to Martindale-Hubbell's website: http://www.lawyers.com/

Martindale-Hubbell publishes a large set of books listing well-known and prestigious law firms throughout the United States. They're in the business of working with lawyers, and they don't seem to have any problems with conflicts of interest and developing websites for lawyers. That's their specialty.

There are plenty of similar companies out there that specialize in designing websites for just a few specific fields and/or businesses (or types of businesses).

I don't think your client's lawsuit will go very far, but either way, make sure your own lawyer files a counter-claim for damages to you and your business resulting from your client's lawsuit against you and your company. I suspect if he sends a letter suggesting a possible counter suit to her, she may even back down and withdraw her suit.

Just a suggestion. Hope it helps!

Syren

BTW, I'm not a lawyer (nor have I played one on TV), but I am married to one and have worked as a legal secretary for over 10 years. ;)

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Wish I had more legal details on both issues, particularly what was found offensive and by whom in what country, but man is this scary or what? (PLease tell me this is not in "america" where we have "rights" about things like free speech)

Let me see if I have this right and can make a couple of analogies that might help in court or at least get the legal profession thinking rationally about web stuff.

****disclaimer: I am not currently, never have been and never will be an attorney. The opinions expressed herin are not legal advise nor a solisitation to invest in negotiable securities. Read what you will, but your actions with this knowledge are your own. Please be responsible.****

Thinking like an attorney for a moment: A web designer is just that, a designer; or more often, simply a programmer. Our job is to "design" websites which usually involves little design and actually means coding text, files and images provided by the client and their professional writers and photographers (or just their own "marketing" folks" into a format the web browser can understand and display. Our second job is, perhaps, to keep the server running and make sure the clients files are accessable. Anything else would fall under the job description of: artist, photographer, graphic artist, SEO, or writer.

(no offence meant to any here who might be qualified, but if you are hiring a programmer to write your promotional copy or take pictures for your website, then you are doing it wrong! And vice versa, LOL, but I'll get back to that)

Now, lets see if we can find any "real world" situations the politicans, judges and attorneys can relate to. Wouldn't a web designer be similar to:

the old press guys at a magazine or newspaper. The typesetter (read designer) took the type the writers wrote and "programmed" it into a "language" (typeset) that the camera could read. Then the plate makers would "program" this info into a format the presses could understand (plates). Next you have the pressmen who operate the press. Who is responsible for offensive material? The writer, editor and owner of the publication, that's who. Anyone else who tried to censor the publication or refused to print a certain page would have been fired, and rightfully so.

And how about librarians and truck drivers. Whose fault is it that an offensive book showed up in my childs school? Well, according to the questiond that started this thread it might just be the librarian, book salesman, warehouse people or even the truck driver who delivered it, certainly not the people who wrote and produced it. To keep the printing analogy going, how often do you hear of a printer being sued for the content of something he was hired to print? I don't know the answer, but it seems far fetched for me. Perhaps not too far fetched for the legal system, though!

What about actors? Couldn't an actor be sued for something they recited that someone found offensive? Well, yes, but it would probably fall once again on the writers, director, producers and the boss/client who provided the script. (even if they were sued or found guilty, then I'm sure the actor would rightfully sue everyone above him that hired him to say what ever it was and be victorious)

OR how about court? Is the court reporter legally responsible if the witness starts screaming profanities or saying prohibited speech and they write it down in a publicly archived and accessible document because that's their job? What if I read it later in the archives and am offended. Should I sue the court reporter because she wrote it down on paper for me to read later? (this analogy actually seems the best for me and might acurately reflect what function a web designer actually has, mainly writing down everything for others to read later.)

The real challenge is when we move out of the Web designer realm and become writers, producers, artists, photographers, graphic artists and all those other hats web designers wear whether they are qualified or not. Most of the time we are unaware of the legal responsibilites or duties these people have since we have never formally been trained or worked in those professions where this knowledge is obvious or at least discussed and disseminated on a regular basis (writerproworld.com?). We spend our time figuring out how to rank higher on search engines, they spend their time making sure they stay out of jail for saying, printing or painting the wrong thing.

Who has time to find out all the legal pitfalls one might face as a graphic designer, writer, photographer, programmer, ISP, and every other hat we might wear for every single country in the whole world? We better, since more and more we are expected or ask to wear all those different hats when we build a website.

But what concerns me most here is the copyright thing. IF I write an article and sell it's rights to a publication, I do not own it any more, they do. If I write this article and then sell them the rights for a particular use, then I still own it except for that particular use (may issue, for example). So, to take that to our discussion:

You own everything you write up until you sell it. Other people own what they write until they sell it to you. If you are hired to write something, the person who hired you owns the rights to the article when you are done. Seems the same with a website. If I'm hired to write a site and then they use it and publish it, it's their "intellectual property" now to do what they will with. IF that turns out to be illegal, then it should fall on them, just like it would with a writer/magazine arrangement, right?

But I live in a country where the cigarette manufacturers are responsible for people smoking too much, the bartender is responsible if you drink and drive, the gun makers are responsible when someone is shot, the TV is responsible for my unruly kid, schoolyard teasing couldn't possibly be the cause of Columbine and we arrest cancer patients for taking pain drugs and then give them the same drugs for free in prison. Not very fair, but democratic and the way it works!

My point is that in most of the world, but especially in America anyone can sue you for anything. It might not make sence or seem fair, but that's how it works. Someone can't keep his kid off the porn sites so we call a senator or two and pass a law to hold the website guys responsible since we can't find the porn fiends because they don't put their names on the pictures. Spam is costing the country millions in lost productivity and network clogging, so we make a law that they must put ADV on thier emails since we can't find any of these people in real life to prosecute them under the laws they are already violating. Someone blows up a building so we spend 200 million this year alone to learn how to monitor all communications around the globe and force webmasters and librarians to give up personal data about their clients or even monitor them and report back to us in the hopes we might find that one in 100 million people who wish us harm. Sounds funny doesn't it, like something out of a horror movie or a sick joke? Well, it's all true and you can get sued or even arrested now for anything.

Then we say "well, I'll just put up a disclaimer". That won't work either. You can disclaim all you want, but sometimes it will be outright illegal and other times such provisions will be tossed out in court faster than you can even sit down. Just because you put up a disclaimer doesn't mean anything. I have seen such disclaimers that were all thrown out in court. Non compete clauses, "we only owe you for the exact amount of the product", and "client owns all intellectual property" or "will use for lawful purposes only" mean absolutely nothing when you are sued. The rave promoter can plaster the place with "no drug use allowed" and even have people sign contracts that they won't use illegal drugs, but if they do it's still a $250,000 fine and 10 years in jail for the guy signing all the checks. That's the law because that's what we demanded they do to protect the children.

You can have the client supply all the materials and you can write what you want in a disclaimer. You can make sure you do everything according to the "book". You can be right, right, right. But you will still get sued sued sued if someone else is unhappy. As Gypsy is finding out, lawyers need to work too and your clients lawyer boyfriend might just sue you to shut his obnoxious girlfriend up about the whole thing so he can get some. You never know how these things start.

You know how to stop it? Call your senator, call your congressman, call the local press, call the mayor if you have to, but help put the foot down that enough is enough. We are appaled when we read of such injustice and we are outraged when it happens to us. But what have we done to change things? Who have we told our side of the story too? How many news shows have shown the ramifications such legislation and abuse of the courts has to the hard working web professionals of the world? Don't just discuss it here in this forum where we are preaching to the choir, make sure everyone knows the risk you assume when you design their website. Make sure your friends all know that the next law meant "to protect the children" might just land you in jail for doing your job.


Sorry to go on and if it's not very well thought out. Just went with the flow and now I see how long it is with no time to edit!

Hahahahahahhahahaha

Sorry to be a cynic but.......




AAAAHHHHHHh hhahahahahhahahaha

The country who not long ago created patriot act so as it could screw it's own people

For a newcomer REG u sure made an awesome post. Good one. I fully agree with u.

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Not the same... you have a website and you use a web designer with clients with websites you will try and monopolize his/her time so they cannot do work on anyone else's website....

now if the web designer uses your art and content to design another site then you have redress.

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Regmanabq... well thought out piece and yes you covered all the angles including the vagaries of the court system... though ultimately it will not hold water it does not get around the legal expenses (which some times get covered if you counter sue for them) or your time spent which you never get back.

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Thanks for the nice words everyone. I do try and post well thought out ideas and I just call it like I see it. I am always nervous when posting to a new group and I'm glad I'm not putting my foot in my mouth here!

But I did want to respond to aussie who brought up a most important point. Again, I'm not so up on the legal systems around the world, but in the US this is a tried and accpetable legal tactic to simply overwhelm your opponent with legal fees and expenses. IF you are larger than the other guy, just sue him until he can't survive and then he will roll over and give up.

I'm a firm believer that this is a serious threat to the legal system and a crime against all humanity. But, as long as attorneys and judges keep getting elected to public office and put winning their cases above justice, I don't see this changing. IF most legislators were crack addicts it would be legal, cheap and available in candy stores. See my point?

The only ways to combat this is a difficult path to follow; but one I urge everyone to at least try. When you learn of such injustice, write a letter to the company and spread the word. Don't buy their products, tell others how they run their company and treat the members of our community. I know it all sounds a little "Utopian" but it works if enough people get the word out.

Until the community responds and hits these scum bags in their pocket books where it hurts them most, the little guy will always lose. That's just sad and wrong.

Hmmm...

This brings up a post about music in the break room to mind.

If, as a designer, I know something the "owner" of the site wants done, added, wrote or otherwise that is copyrighted, illegal, questionable or otherwise leaves an ill-feel in my gut, I don't do it. Why? As the designer I know some how, some way they will try to pin it on me, especially if the client is a business that is larger than myself, or a person with money to fight to get more money.

That being said, the designer takes the content (provided by the client) programs it to display a certain way, and publishes it for the client.

Design contracts should include clauses/plauses/phrases/technical terms etc that place the content responsibility on the content owner. Who owns the domain, the hosting account, the web site? The programming code is not offensive (should not be any way).

Yet, somehow, the client will try and tell the judge/court, "I didn't know I couldn't do this, and my designer never told me I couldn't either," in attempts to place the blame on the designer. Are desgner's then responsible to adivse clients in acceptable use, copyright, illegal, questionable, offensive or otherwise unknown content? With what legal right would we designers have to do so?

Worse, the courts are still kind of lost on the whole Internet/Web Design track, especially if you live in a small rural area such as myself. so they don't know what exactly to do in these cases.

Now for conflict of interest, unless you signed a contract stating that you would not design any other sites related to that industry with the person, there really is no legal ground to stand on. An example would be that Electric Company A uses Great Mechanics for their service truck repair. Electric Company B uses them as well. Electric Company A dislikes this, sues Great Mechanics for conflict of interest. What they are really trying to do is snuff out their competition via you the designer, and nothing more because they are afraid of their competition. If they want to get technical, then no one else should ever be able to have a web site similar to theirs, name, colors, design, products or anything. Which just won't happen.

As far as responsibility, if it is not up to your ethical standards, refuse the project. Protect yourself and your interests and your beliefs. Many times the one you reject will complain and try to bad mouth you, but that is far less worse than a costly court battle, and cheaper too with a mere loss of a client that probably would not have wanted to pay you full price anyway.

The other issue as one post mentioned (sorry it is late and I feel to finish this without reading back through the excellents posts to find a quote) is global law. Make your site in accordance to the local law, but remember the intendend audience. I do not design sites for anyone out of the USA, mainly because I don't even know all the kinks and laws here, let alone in other countries. I am not trying to be rude to a great international audience and client base, I just cannot risk my business along with a client because I am not up to par on the laws in their country.

I wish the best of luck to all designers in this area, as there really needs to be some groundwork laid in legislature over the responsibility issues, as well as the legal issues of a designer in contrast to the client.