Municipal Web Sites
Things to Consider When a Municipality "Goes Online"
By Jordan J. Breslow and Marc R. Greenough, Attorneys
Foster, Pepper & Shefelman PLLC
MRSC News, September 1999
The Internet has become an efficient and effective medium for distributing information to and collecting information from the public. Citizens now expect their local governments to provide access to current and comprehensive information via a municipal site on the World Wide Web. When a municipality creates a Web site to harness the power of the Internet, several concerns should be addressed.
Make sure you own the rights to your Web site. A municipality may wish to hire a developer to design and code the Web site. This should be governed by a written agreement specifying that the municipality, rather than the developer, owns the copyright to the Web site. Without such a written agreement, the developer may have a legal claim to the copyright.
Choose your domain name carefully. Be sure you have registered your Web site address, or domain name. The new world of domain name registration coexists uneasily with the much older world of trademarks and service marks. On the Internet, only one entity can have a given domain name. A municipality may wish to register several addresses and direct them all to its official Web site to avoid confusion with competing Web sites.
Designate an official responsible for material posted to the Web site. The technology involved in creating and maintaining an attractive and useful Web site changes rapidly. Those responsible for maintaining a municipality's Web site may have a background in information technology rather than communications or public relations. It is important for municipalities to establish procedures for evaluating and approving material that is posted to a municipal Web site. A Web site is simply another medium of expression; nothing should be posted that would not otherwise be released in writing. Remember, a municipality's Web site is accessible not only by local users, but by users throughout the world.
Consider how links are provided to other sites. A link from a municipal Web site may imply sponsorship of the linked site. When users leave a site, the site should prominently disclaim any liability for what users might find in the online world at large. It is good practice to obtain permission from sites to be linked. Written linking agreements between two sites may become a common practice. Some sites even post terms and conditions spelling out the kinds of links permitted. In the absence of a written agreement, link to the home page of the desired site. Links to pages deep within a site may bypass advertising and other important information posted to the home page.
Municipalities may be able to provide links to selected sites on the basis of an established policy. For example, a Tennessee city established a policy of only permitting links to sites that promoted tourism, Economic welfare, and industry in the city. The city refused to establish a link to the site of a local alternative newspaper. The federal district court held that the municipality's decision to restrict access to its Web site was reasonable, and it upheld the city's policy.
Establish rules. Municipalities may wish to establish rules for users of their Web sites and require users to click on a button signifying that users agree to abide by those rules in exchange for access to the Web site.
Clearly designate pages as public or non-public. The degree to which a municipality may regulate the content posted to its Web site depends on whether the municipality designates the forum to be public or non-public. For example, a municipality could create a "Sound Off to the City Council" public forum page. In a public forum, the municipality may not regulate the content of speech unless the regulation is needed to serve a compelling state interest and is narrowly drawn to achieve that end. Municipalities may impose content-neutral "time, place and manner" regulations that, for example, limit the amount of data posted to a Web site by any person during a certain time period. In a non-public forum, a municipality may regulate the content of speech as long as the regulation is reasonable and not an effort to suppress any speaker's view.
What about advertising? A municipality should be able to sell advertising on its Web site, much as it would sell advertising on a bus or in a stadium. The municipality may wish to establish standards for the type of advertising it will host.
The Public Disclosure Act applies to Web sites. A municipal Web site is a public record within the meaning of the state public disclosure law. It is unlikely that material linked to a municipal Web site would constitute a public record merely because of that link. As a practical matter, any material on a municipal Web site may be copied by any person having access to the Internet. A municipality may resist a request for inspection or copying its Web site only if the Web site itself falls within an exemption of the state public disclosure law. The most likely exemption was passed by the Legislature in 1999 and allows a municipality to protect source or object code from disclosure if the code was obtained by the municipality within five years of the request for the disclosure and the disclosure would produce private gain and public loss.
Don't violate the Copyright Act. Copyrighted materials cannot be copied, including posting to a Web site, without the express written permission of the owner of the copyright. The Washington Supreme Court has held that a request for copies of engineering drawings to be used in preparation for comments and criticism in public hearings fell within the "fair use" exception to the Copyright Act. Public entities should ensure that any copyrighted material posted to a Web site without the permission of the copyright owner falls within this or another exception to the Copyright Act.
Be selective in posting information on convicted criminals. Public agencies in Washington are authorized to release information to the public regarding sex offenders and kidnapping offenders when the agency determines that disclosure of the information is relevant and necessary to protect the public and counteract the danger created by the particular offender. Some municipalities are now disclosing information regarding certain sex offenders on their Web sites. Municipalities should be aware that different states may have enacted more restrictive laws regarding privacy, and disclosure of information in those jurisdictions may run afoul of such laws. For example, unlike Washington, neither Arizona nor Illinois authorizes the dissemination of information regarding sex offender registration to the general public.
Protect privacy. Users may expect you to protect information such as names, social security numbers, and credit card numbers. Make your privacy policy known to your Web site users. Laws governing privacy can change rapidly. The United States Supreme Court announced that it will decide whether or not states have the right to sell or distribute personal information collected from driver's license applications. The Court will review a lower court holding that there exists no constitutional right to privacy in public records.
Keep your site current. A Web site can easily become a repository of old press releases and stale announcements. Establish a policy for removing or updating material as part of the municipal records retention procedures. One alternative is to clearly segregate material into "Current News" and "Archives." A disclaimer advising the reader that archived material will not be updated is also advisable.
Stay tuned. Municipalities are subject to all the laws that govern private Web sites as well as federal and state constitutional and statutory provisions that govern public entities. The law regulating the Internet is evolving rapidly. Consult your legal advisors regularly to ensure that your Web site remains in compliance.
Jordan J. Breslow and Marc R. Greenough, Attorneys
Foster Pepper & Shefelman PLLC
Jordan J. Breslow is co-chair of the Intellectual Property Group and Marc R. Greenough is a member of the Municipal and Public Finance Group of Foster Pepper & Shefelman PLLC. Both may be reached at (206) 447-4400 or via the firm's Web site at www.foster.com.