Recently we brought you a story about the possible consequences of what you say / post on the Internet.  It’s a tale we’ve actually discussed time and again; a series of cautionary tales and a mantra I’m sure many parents become broken records telling their kids.  Even Disney’s Phineas and Ferb made a really good PSA “Rules of the Cyberspace Road” where Ferb knowledgeably tells kids, “The Internet is forever.” No matter how hard you try you just can’t make it clearer than that.  Ask any celebrity who has tried to take back a Tweet, they just don’t go away.

There are so many stories of what happens online affecting people IRL, but still so many act as though what happens on the Internet stays there.  Just to highlight a few:

Trouble Pursues Ashley Madison Users

Cyber Bullying and the Death of Zoe Johnson

Craigslist Seller Beware!

Teens Exchanging Topless Photos Like Playing Cards

Gangs responsible for Craigslist Robberies

His Online Persona Was a Girl Named Jessica

10-Year Old Girl Targeted Online By Pedophiles

Subway Spokesman Jared Fogle’s Confessions

And our latest blog which has stirred all the attention – A Tale of the Internet and Bad Decisions.

The real life implications of what happens online are endless and sadly some like Hope Witsell never recover from what happens on the Internet.  Hope was a young lady whose story we brought you last February; Hope took her own life after a picture she had “sexted” was passed around school.  Our hearts break for her and her family, what more could have been done to help her understand the consequences of what you do online?

Education is one of the keys, what you say online matters and can have serious consequences.  Listed above are a variety of criminal activities, jurisdiction would determine the exact crime, but generally there is cyber bullying, stalking, fraud, robbery, sex crimes, extortion, production and distribution of child pornography.

When looking at A Tale of the Internet and Bad Decisions we use the Free Speech test found atCriminalDefense Lawyer by Nolo, this page specifies Michigan, but as we have no context for where the mother and baby are located so this works as a good example.

Your right to free speech is protected under the 1st Amendment of the United States Constitution, however you must understand that this is a limited right. Speech that would pose a serious imminent threat to people or property may be legally limited by the state.

When it comes to bullying, you are not allowed to utter threats or engage in other abusive behaviors (conduct is also considered “speech” in this context) that pose an imminent threat to someone else. For example, threats to use a weapon are limited speech when the victim knows the bully actually has such a weapon and is nearby enough to make good on the threat.

But the line between a legitimate expression of opinion and seriously threatening speech is not always as clear and easy to draw as in these examples. For this reason, it is worth exploring a free speech defense, especially if your words or actions were ambiguous enough not to put a reasonable person in fear of harm.

So here’s the question were the words posted to Facebook with the picture of the mother and child an imminent threat? “Would you mind if I post this picture of your baby on a pedophile’s site?” followed by, “How about this one? I can link them to your profile too!”  Would a reasonable person fear a real threat of harm and how do you define “nearby” in cyber space?

New York gets more specific on Cyber Bullying, included under the category of penal code 240.30 Aggravated Harassment in the second degree:

1. With the intent to harass another person, the actor either:

(a) communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person’s same family or household as defined in subdivision one of section 530.11 of the criminal procedure law, and the actor knows or reasonably should know that such communication will cause such person to reasonably fear harm to such person’s physical safety or property, or to the physical safety or property of a member of such person’s same family or household;

In the shoes of that Mom would you reasonably fear for your child’s personal safety?

Beyond the question of Cyber Bullying we find numerous questions about images and copyright on the Internet.  Bitlaw.com has an excellent section on the Fair Use Doctrine.  There are four factors, under the Copyright Act, used in determining whether use of a specific item would be considered “fair use”.

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
2. that nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for the value of the copyrighted work.

Important in this discussion is what are protected works vs unprotected works.  From Bitlaw.Com, “To be protected by copyright, a work must contain at least a minimum amount of authorship in the form of original expression.”  Original expression typically being discussed would be novels, songs, movies, other video productions, and works of art, all of which would be greatly affected by the fourth consideration above. In the question of “fair use” the Supreme Court has stated the fourth consideration the most important consideration in copyright infringement.

So now that we have an idea what constitutes a protected work and know that the affect on value is the top consideration, it is also important to understand how the first item, purpose and character of the use, affects the question of copyright.  Generally reproduction for purposes such as criticism, comment, news reporting, teaching, and research are not copyright infringements. This has been taken to cover most blogs and personal websites, however item 4 would have to be considered in relation to personal websites where there is financial gain from the copywritten work.

Finally comes the question of defamation.  So what constitutes online defamation?  Defamation is generally defined as a false, published statement that is injurious to the plaintiff’s reputation. When a statement of fact is made and it’s true then there is no claim to defamation.  A good example would be a Yelp review, a customer posts a review of your restaurant claiming there was an infestation in the kitchen, so you sue them for defamation. This is where it gets tricky, it’s civil not criminal so the user does not have to prove there was an infestation, instead you have to prove there was no infestation and therefore that the statement was false.

Next you find the question of fact vs opinion; opinions are privileged under the law.  A fact is considered a statement that can be proven true or false. An opinion is a matter of belief that cannot be proven one way or the other. For example, “John is a thief.” can be proven false by showing that John has never stolen anything.  In contrast “John is a complete idiot.” is an opinion or “a pure opinion” as the meaning of idiot is subjective and one person’s idiot is not necessarily the next person’s idiot. Take a look a 19th century census records to get a hint at the fluid definition of the term idiot.

Defamation also does not apply in the case of a quote of one’s own words, even when you don’t like the opinion based on those words. Take the case of Lena Dunham’s book, Not That Kind of Girl, where at least one “cease and desist” letter was received by a blogger / news outlet after they quoted portions of Ms. Dunham’s book and shared an opinion relating to those quotes.

The Internet is a complex landscape, made all the more tricky when you don’t stop to consider the consequences of your words. As much as we might all want to over complicate the issues at hand, it really is as simple as what Phineas & Ferb say in the PSA, “The Internet is forever.” and “If you wouldn’t do (say) it in person your shouldn’t do (say) it online!”

#ThinkBeforeYouPost

Few things drive me as crazy as insistent popups.  Clearly some online marketing / web design companies are selling these as the best way to capture information on your audience, for both tracking and later marketing purposes. But lets not kid, it's the Internet and if your website annoys me I can find what I'm looking for somewhere else.

Take this popup for an example on a local realty website.  It's absolutely maddening.

I was attempting to look at a home they have listed for sale when BAM this ad pops up. I glance around for an "X" when none is to be found I hit "ESC" but to no avail, I'm stuck with this irritating popup on my screen.  I have two choices, sign in and give these people my personal information either directly or through one of my social media accounts, or close out of their website and go find the information somewhere else. And while I'm at it, make a mental note to never look for things on their website (and by extension never use their services) again.  Guess which one I chose...

The very idea that you should demand a potential customer's information to allow them to view information on your website is absurd and while many people have become comfortable with just clicking the "f" to login via Facebook quite a few are far more savvy and not interested in this kind of forced marketing.

At the very least a smart online marketer is going to provide people a choice; that little "X" that allows people to decide if they want your advertising and in the end if they don't you haven't offended anyone. Because let's be real, had you not forced me to find the information on your listing elsewhere I wouldn't be writing this article right now...

We're using Wix as an example, but you could substitute a number of other big name Free website advertisers, like Web.com for a lot of this information. Where there's an important difference we'll include that as well.

We chose Wix because a client of ours was considering using their free service for a new website and wanted to know the true meaning of "Free"? For a little background this particular client is involved in writing and performing music.

Before you sign up for anything Free on the Internet you must carefully read the Terms of Service (ToS) or Terms of Use (ToU). This is where you won't find the flashy sales pitch to get you to sign up; instead you'll find all the details about the true meaning of "Free" and other very important service information. If you don't read this section thoroughly you have no right to complain later and by agreeing to their ToS/ToU there isn't a lawyer out there who can help you.

In section 1.2 Legal Agreement Wix makes it clear that "The Wix Terms constitute a binding and enforceable legal contract..." "You may visit and/or use the Wix Services only if you fully agree to Wix Terms - and by using and/or registering to any of the Wix Services, you signify and affirm your informed consent to these Terms of Use and any other Wix Terms applicable to your use of any Wix Services." There it is, you affirmed your informed consent to these Terms, so later telling an attorney, let alone a judge, that you didn't realize what the ToS/ ToU said will not get you anywhere.

In section 2.2 subsection 5 it gets more interesting. Here you agree to: "allow Wix to use in perpetuity, worldwide and free of charge, any version of your User Website (or any part thereof) for any of Wix's marketing and promotional activities, online and/or offline, and modify it as reasonably required for such purposes, and you waive any claims against Wix or anyone on it's behalf relating to any past, present or future moral rights, artists' rights, or any other similar rights worldwide that you may have in or to your User Website..." Ouch, well that explains where a portion of the "Free" goes; if Wix likes your website or how you put your content together they have the right to use it and your content for marketing and other promotional purposes. Harvard Law School has a section on Art Law that covers Artists's Rights and Moral Rights. The gist of the artists's rights is the law provides artists certain protection of their creations (intellectual property) whether the interest is economic, non-economic or personality rights. Moral rights include the right of attribution, the right to correct or withdraw a work previously disclosed to the public, and the right of respect of the work.

It is interesting that Wix has chosen to call out these specific rights for users to waive. Those creating and selling unique works would unlikely intentionally waive their intellectual property rights or their right of attribution.

Web.com has a similar paragraph, although they do not call for the user to waive their artists' or moral rights and it is not in perpetuity, at least not for it's general hosting packages. From Web.com, "You expressly grant to Web.com a non-exclusive, worldwide and royalty-free license to copy, display, use and transmit on and via the Internet the content that is submitted, stored, distributed or disseminated by you via the Hosting Services, including without limitation, trade or service marks, test, images, photographs, illustrations, graphics, audio clips, video clips, email or other messages...and revocable only upon termination of Hosting Services."

In section 2.3 you now find Wix's protection of their intellectual property, which they are obviously a lot more interested in protecting than yours, "You agree and undertake not to copy, modify, create derivative works of, download, adapt, reverse engineer, emulate, migrate to another service, translate, compile, decompile or disassemble the Wix Services (or any part thereof), any Content offered by Wix or Third Party Services for use and display within User Websites..." The important part here, is lets say you decide you like your website, but would like to work with a local website hosting provider, or perhaps the fees have grown too high with your once "Free" website and want to move it, per this section you have agreed not to "migrate to another service" or "copy" these services. In a nut shell you don't own your website and you may not own your domain name either. The www.yourcompany.com may actually be owned by the site builder company. Wix appears to have you purchase your domain name, while Web.com in part states, "Customer acknowledges and agrees that Web.com and/or an entity designated by Web.com will retain rights to the Domain Name, unless Customer had provided the Domain Name themselves for use with the Services."

Lastly in section 3.1 entitled Your Intellectual Property (this title is particularly funny or scary once you read the paragraph), you find that while you naturally own your intellectual property that's not very comforting as you are granting Wix a license to use your content (intellectual property) from now until perpetuity. "As between Wix and you, you shall own all intellectual property pertaining to your User Content, including to any designs, animations, videos, audio files, fonts, logos, illustrations, compositions, artworks, interfaces, text, literary works and any other materials created by you. You hereby grant Wix a royalty-free, perpetual, irrevocable, non-exclusive, transferable and sublicensable right and license to use your User Content (in whole or in part) worldwide in order to provide you with the Wix Services..."

So what's the cost of this "Free" website?

• Your hard work and a part of the brand you've built up is lost if you ever want to move your website.
• Depending on how you signed up the loss of your domain name will cause you to lose all the work you've put into your online recognition, SEO, SEM, etc.
• A customer who goes to www.yourcompany.com and finds a splash page for Web.com instead of your website, might think you've gone out of business instead of just moved your site and therefore had to change your domain name.
• You grant others rights to your own unique content and brand.
• Those creating one of a kind works of art, music or fashion give up their artists' and moral rights.
• This licensing specifically includes third parties, through sub-licensing, so you never know where you could find your content which you have also agreed to allow to be modified to serve their particular needs.

While "Free" may seem like the easiest way to get a website, it's a far cry from actually being "Free" and in the long run could be far more costly than paying for a website.

When it comes to a website and protecting your brand and intellectual property there are a couple of things to keep in mind. First and foremost pay to own your domain name and make sure it's properly in your name.  See our article about Best Practices When Registering a Domain Name for more info.  Second if you want to use a site builder that's great, but avoid "Free" as it's clearly not, use a local provider like us, Top Speed Internet Service,who provides a wide variety of themes to use in a site builder, but has no desire to keep you hostage by owning your content, nor requiring rights to your intellectual property for our marketing.  If you decide you'd like to have someone build your website, shop around, talk to a few designers and see who best understands your needs and desired outcomes for your website.

Late last year Google made an important change in their ranking system that has received relatively little coverage.  Google has added to their search ranking algorithm a query to determine if a site is being served over HTTP or HTTPS. If a site is being served over HTTPS it ranks higher.

Here's an example of HTTP vs HTTPS:

Now I'm sure you're thinking - great I can see the "S" but what does it mean?  HTTP stands for Hyper Text Transfer Protocol, when you add the "S" you're adding Secure to the Protocol.  Simply put the "S" means the site has been validated and adds a layer of encryption between your device and that website.  

The additional security has 2 main purposes, the first is to verify you are communicating directly to the server you believe you are talking to; take your banking for example, as that is probably the most important secure connection you make on a regular basis. See the examples below of a secure bank connection and a spoofed bank website, that obviously does not have security.

The second website may look like Canada Trust, but is actually going to the URL microscopix.ch and as it is not who it claims to be does not have secure protocol.

The second purpose of the additional security is encrypting the communications (i.e. your username and password, etc) and ensuring that only the server you're sending to can read what you've sent.

In a release last year Google said, "we'd like to encourage all website owners to switch from HTTP to HTTPS to keep everyone safe on the web."  To that end they've added the HTTPS to their ranking algorithm to encourage all website owners to add an SSL Certificate to their sites.

This begs the next question, what kind of SSL Certificate does your site need?

You'll want to consider a few questions before deciding which SSL Certificate is right for your website:

1. Is your site just informational so having an SSL is really about pleasing Google?
2. Do you collect user information, through comments to your blog, or embedded forms on your site?
3. Do you accept credit card or other online payments through your website?

If your site is adding an SSL Certificate just to add to your Google ranking, adding an Easy Trust SSL for $89 will be plenty. This kind of certificate uses Domain Validation, which is quick, but only verifies the purchaser against the whois information on file for the domain the certificate is being purchased for.  If the information lines up then the Certificate is issued.

If you're collecting user information or payments you'll likely want a more robust SSL Certificate that uses more intensive validation, either Organization Validation which verifies the actual existence of the business, or Extended Validation which takes the longest, but takes the time to prove the brick and mortar existence of the business and verifies business details.  Extended Validation is the type of validation banks have, see the example above of Bank of the West's website, notice it has a green bar and lock sign showing the highest level Certificate. These cost anywhere from $179 up into the thousands of dollars per Certificate.

Here are a few scenarios to help you decide which SSL Certificate is right for you:

• You're a home based service business that does not accept online payments, but would like to improve Google ranking. Best option - Trustwave Easy Trust for $89 annually
• You're a home based product business, you sell items locally and online.  Best option - Trustwave Premium SSL with Organization Validation for $129 annually
• You're a brick and mortar based business who sells, products or services, in store and online. Best option - Trustwave Premium SSL Extended Validation for $179 annually or GeoTrust True BusinessID with Extended Validation for $199 annually
• You're a home based business that sells online using multiple sub-domains*. Best option - Comodo Wildcard SSL for $249 annually
• You're a brick and mortar business that sells online and in store using multiple sub-domains*. Best option - thawte Wildcard SSL with Organization Validation for $369 annually
• You're a brick and mortar business with multiple domains you need covered. Best option GeoTrust True BusinessID SAN SSL with Extended Validation $350 annually

*An example of sub-domain use would be in our case, where we have tsis.net as our main domain, but we also have store.tsis.net for selling computer equipment and acc.tsis.net for selling our web based services; a Wildcard SSL allows us to cover all 3 using a single SSL Certificate.

SSL Certificates can be ordered directly from Top Speed, to order now click the Buy Now button.  If you'd like to talk to someone about which SSL Certificate is right for you, call or email us now - 775-852-1811 or This email address is being protected from spambots. You need JavaScript enabled to view it..