© 2013 Elena Fawkner
Have you ever had the edifying experience of receiving
an unjustified spam complaint from a complete nutter? I did,
just this week. It seems to be an unfortunate fact of life for
those of use who run an online business.
The whole experience got me thinking just how vulnerable
those of us running online businesses are to those
individuals whose sole purpose in life seems to be to attempt
to destroy other people's livelihoods. Their ability to wield
power is, of course, only facilitated by the lack of natural
justice that seems to apply in the online world. Where else
could you be tried and convicted of a crime without even
knowing your accuser or being given the opportunity to
present your side of the case?
Now, there's not much you can do to protect yourself from
the crazies in this world if they decide to target you. But you
CAN minimize the areas of liability you are necessarily
exposed to in your online (or offline) business. This article
discusses a few of those areas and ways you can minimize
your legal liability.
Also known as "unsolicited commercial email", spam is
simply a fact of internet life. Do yourself a favor. Accept
as such and move on. Life is too short to try and move an
Now, having said that, let me say this. DON'T SPAM
ANYONE. EVER. Period. It's no way to do business,
doesn't work and it will only cause you and your business
If you want to mass mail your offer, the only effective way
is to cultivate your own opt-in mailing list or to purchase
advertising to someone else's. Starting a newsletter is one
way of building your own list; inviting your site visitors to
leave their email address when they visit is another.
Alternatively, you can buy advertising in someone else's
newsletter or purchase an exclusive mailing (a newsletter
publisher sends your ad to his or her subscribers in a
separate mailing containing nothing but your ad).
Be VERY wary of purchasing the so-called opt-in mailing
lists that you will see on offer from time to time. Fertile
ground for scam artists, the modus operandi typically
starts with an advertisement enticing you to send your
message to 100,000 people, all of whom are just waiting
with bated breath to receive your offer. All you have to
do is pay the owner of the list for access to the email
addresses. Because each of these 100,000 have
"voluntarily" joined the list (hence the term "opt-in"), no-one
can accuse you of spamming. That's the theory.
In truth, of course, there's nothing even remotely "opt in"
about these lists and you will expose yourself to serious
problems if you mail to many of the addresses in these lists.
After all, would you make YOUR email address available to
someone for the sole purpose of receiving advertising
material? I doubt it. So why would 100,000 other people
If you do decide to develop your own mailing list, either
via your newsletter or capturing the email addresses of your
site visitors, keep a record of each subscriber's subscription
email or form so that, if necessary, you can prove that the
person signed up for your newsletter or voluntarily provided
their email address at your site so you could contact them
in the future. This will go a long way to short-circuiting
misguided spamming allegations.
If you provide information at your site, protect yourself
from the consequences of a visitor suffering some sort of
damage as a result of using the information you have
provided. The way to do this is with a disclaimer of
A disclaimer of liability in this context makes it clear to the
site visitor (or newsletter subscriber) that although the
information you are making available is provided in good
faith and you believe it to be correct in all respects, you
accept no responsibility for any errors or omissions
contained (or not, as the case may be) in the information.
Further, by availing him or herself of the information you are
making available, the site visitor assumes all risk associated
with the use or misuse of that information.
The effect of such a disclaimer is that if you are sued for
negligence, in addition to any other defences that may be
open to you, you will be able to invoke the defence of
assumption of risk. In other words, your site visitor assumed
all risk associated with the use or misuse of the information
you have provided.
In order to be effective, a disclaimer must be prominently
displayed at your site so that the site visitor may reasonably
be expected to have been aware of it. It will be of absolutely
no effect if the existence of a disclaimer can only be
discovered in the fine print way down the bottom of the page.
Click on "Legal Notice". (In keeping with the present subject
matter, if you decide to copy this wording (which you may),
you assume all risk that the wording may prove to be
ineffective. ;-) If you want more certainty as to the
effectiveness of your disclaimer, consult your attorney.)
The same principles apply for those of you publishing
If available, take out public liability insurance to cover
yourself against claims for negligence.
Do not publish anywhere on the internet (or anywhere
else for that matter) material that is defamatory of another
person or business. The laws of defamation are not
uniform throughout the world or even within countries in
many cases so it is not possible to be overly specific about
the do's and don'ts here. As a general guide, though, material
will be defamatory if it impugns a person's character and/or
reputation and is untrue. A good rule of thumb is "if in doubt,
leave it out".
These are just a select few obvious ways of minimizing
legal liability in your online business. It hopefully goes without
saying that as a matter of course you conduct your business
with the utmost integrity and ethical considerations. This is
the greatest protection your business can possibly have. But
sometimes, with all the best intentions, things can still go
wrong. We are, after all, only human. But by continuing
good business practices and implementing some or all of
the suggestions in this article, you will go a long way to
protecting your livelihood from avoidable disaster.