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  • Pivoting Your Business Online? Don't Forget to Mind the Details

    By Paul J. Durham, Esq.

    Despite all of the hardships that businesses have endured in recent months, many business owners in New Hampshire have come up with innovative ways to survive—and even thrive—during the COVID-19 pandemic.

    Healthcare providers have greatly expanded patient access to telehealth appointments. Accountants, lawyers and professional advisors regularly utilize video-conferencing to deliver their services seamlessly. Fitness and yoga instructors, interior designers, and even dog trainers have retooled and adapted to reach their clients in new ways. 

    But just as you would review permits, lease terms, and other legal requirements before relocating your brick-and-mortar establishment, a move or refocus online should also include a survey of potential legal issues. The following general topics are worth considering regardless of the size of your business.

    Terms of Use and Customer Agreements. Most businesses will already have, at a minimum, a website or other online presence for marketing purposes. Many will also have online terms of use that cover visitors’ access to  the site. However, if products or services are now offered or delivered online, more fulsome customer-facing agreements should be created to address key business points such as recurring fees, duration of online memberships, renewals, and any notices and disclaimers necessary to limit the company’s liability. Remember that basic legal principles apply to transactions regardless of whether they are completed online or in person.

    Intellectual Property. As a business owner, you will want to safeguard any proprietary content that you create, display or distribute online. This includes spelling out permitted uses in your customer-facing agreements and obtaining copyright or trademark registrations when appropriate. However, you also need to be sure that the content you display does not infringe upon third party intellectual property rights. These infringement issues can arise in unexpected ways. For example, a personal trainer who leads an online group class may not think twice about playing popular music during a streamed session. However, the trainer could very well be infringing upon the rights of the music owner if she did not first obtain an appropriate license or permission to use the musical work.

    Online Privacy and Data Use. Customer information is often collected online as part of the purchasing process or through customer registrations. The collection, use, and sharing of personal data is restricted by a variety of data protection and privacy laws. Businesses should be sure that their privacy policies are kept up-to-date and prominently displayed consistent with regulatory requirements. Similarly, the use of email and text-based marketing messages to reach customers are governed by separate laws and regulations. Although laws such as CAN-SPAM and the Telephone Consumer Protection Act (TCPA) may seem complex, compliance is not necessarily difficult and can be managed through a variety of best practices.

    By adapting and pivoting to online service models, some innovative business owners have not only weathered the recent crisis but also expanded their geographic reach. As with any successful change in direction, it is wise to prepare for new issues, legal or otherwise, that may arise over time.


    While the following information may include some general guidance, it is not intended as, nor is it a substitute for, legal advice.

    Sheehan Phinney has offices in Manchester, Concord, the Upper Valley, Boston, and soon Portsmouth. We provide a broad range of sophisticated legal services to our business clients. Visit sheehan.com to learn more. Durham can be reached at pdurham@sheehan.com.