Websites play a vital role for organizations. They facilitate communication with consumers, constituents, patients, employees, and the general public. They project an organization’s image and promote goodwill, provide information about products and services and allow for their purchase. Websites also inform investors about performance, enable job seekers to view and apply for open positions, and accept questions and comments from visitors to the site or app, among many other activities and functionalities. Because of this vital role, websites have become an increasing subject of regulation making them a growing compliance concern.
Currently, many businesses are working to become compliant with the California Consumer Privacy Act (“CCPA”) which, if applicable, requires the conspicuous posting of a privacy policy on a business’s website. But, the CCPA is not the first nor will it be the last compliance challenge for organizations that operate websites and other online services. However, the CCPA along with the flood of ADA accessibility litigation are causing many organizations to revisit their websites and online services to meet the growing compliance burden.
What are some of these requirements?
ADA Accessibility. When people think about accommodating persons with disabilities, they often are drawn to situations where a person’s physical movement in a public place is impeded by a disability – stairs to get into a library or narrow doorways to use a bathroom. Indeed, Title III of the Americans with Disabilities Act grants disabled persons the right to full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. Although websites were not around when the ADA was enacted, they are now, and courts are applying ADA protections to those sites. The question is whether a website or application is accessible.
Although not yet adopted by the Department of Justice, which enforces Title III of the ADA, guidelines established by the Website Accessibility Initiative appear to be the more likely place courts will look to access the accessibility of a website to which Title III applies. State and local governments have similar obligations under Title II of the ADA, and those entities might find guidance here.
HIPAA. For anyone who has had their first visit to a doctor’s office, they likely were greeted with a HIPAA “notice of privacy practices” and asked to sign an acknowledgement of receipt. Most covered health care providers have implemented this requirement, but may not be aware of the website requirement. HIPAA regulation 45 CFR 164.520(c)(3)(i) requires that covered entities maintaining a website with information about the entity’s customer services or benefits must prominently post its notice of privacy practices on the site and make the notice available electronically through site.
COPPA. The Children’s Online Privacy Protection Act (COPPA) was enacted to give parents more control concerning the information websites collect about their children under 13. Regulated by the Federal Trade Commission (FTC), COPPA requires websites and online services covered by COPPA to post privacy policies, provide parents with direct notice of their information practices, and get verifiable consent from a parent or guardian before collecting personal information from children. COPPA applies to websites and online services directed to children under the age of 13 that collect personal information, and to sites and online services geared toward general audiences when they have “actual knowledge” they are collecting information from children under 13. Find out more about compliance here.
FTCA. Speaking of the FTC, that agency also enforces the federal consumer protection laws, including section 5 of the Federal Trade Commission Act (FTCA) which prohibits unfair and deceptive trade practices affecting commerce. When companies tell consumers they will safeguard their personal information, including on their websites, the FTC requires that they live up these promises. Businesses should review their website disclosures to ensure they are not describing privacy and security protections that are not actually in place.
CCPA. As mentioned above, a CCPA-covered business that maintains a website must post a privacy policy on its website homepage through a conspicuous link using the word “privacy,” on the download or landing page of a mobile application. That is not all. The website must also provide certain mechanisms for consumers to contact the business about their CCPA rights, such as the right to require deletion of their personal information, and the right to opt-out of the sale of personal information. The latter must be provided through an interactive webform accessible via a clear and conspicuous link titled “Do Not Sell My Personal Information,” or “Do Not Sell My Info.”
GDPR. In 2018, the European Union’s General Data Protection Regulation (GDPR) became effective in 2018 and reached companies and organizations globally. In general, organizations subject to the GDPR which collect personal data on their websites must post a privacy policy on their website setting for the organization’s privacy practices.
CalOPPA. The California Online Privacy Protection Act (CalOPPA) requires commercial operators of online services, including websites and mobile and social apps, which collect personally identifiable information from Californians to conspicuously post a privacy policy. Privacy policies should address how companies collect, use, and share personal information. Companies can face fines of up to $2,500 each time a non-compliant app is downloaded.
Delaware and Nevada. In 2016, Delaware became the second state to have an online privacy protection act, requiring similar disclosures to those under CalOPPA. Nevada enacted website privacy legislation of its own. First, like DelOPPA and CalOPPA, NRS 603A.340 requires “operators” to make a privacy notice reasonably accessible to consumers through its Internet website or online service. That notice must, among other things, identify the categories of covered information the operator collects through the site or online service about consumers who use or visit the site or service and the categories of third parties with whom the operator may share such covered information. In general, an operator is a person who: (i) owns or operates an Internet website or online service for commercial purposes; (ii) collects and maintains covered information from consumers who reside in this State and use or visit the Internet website or online service; and (iii) engages in any activity that constitutes sufficient nexus with this State, such as purposefully directing its activities toward Nevada. Effective October 1, 2019, Nevada added to its website regulation by requiring operators to designate a request address on their websites through which a consumer may submit a verified request to opt out of the sale of their personal information.
This is by no means an exhaustive list of the regulatory requirements (we’ve focused generally on privacy and security) that may apply to your website or online service. Organizations should regularly revisit their websites not just to add new functionality or fix broken links. They should have a process for ensuring that the sites or services meet the applicable regulatory requirements.
