Guard yourself against Web site
Paul Peng, O.D., J.D., and Peter
A growing number of optometrists
are posting Web sites on the Internet. If you're a part of this
population, you need to be aware of the potential legal risks
facing you because of your site. Consider the following scenario.
Dr. Smith, a private practitioner
in California, creates and posts a Web site. His site provides
information about the eye, conditions that affect it and
treatment options for those conditions. A patient in Florida
reads the information, takes Dr. Smith's advice, gets hurt and
decides to sue.
Well, depending on the long arm
statute in Florida, Dr. Smith may be required to appear in court
there. This could also occur even if the person using Dr. Smith's
information is Dr. Jones in Colorado.
Using the Internet to conduct
business in another state extends the jurisdiction of that state
to impose its laws on you.
Jurisdiction is the ability of a
given court of law to exercise control over you or your property.
The long arm statute is a tool used to achieve this control.
Black's Law Dictionary defines a long arm statute as, ". . .
providing for a jurisdiction over a nonresident defendant who's
had contact with the territory . . . ."
In terms of the Internet, we're
now faced with legal questions about making contact with a
territory or state in which we've never set foot. In optometry,
any "cyber contact" may raise the issue of practicing
medicine in states where we're not licensed.
The long arm statute at
Traditionally, courts have
required a tangible presence coupled with the intent of the
nonresident to gain some benefit from the state to trigger the
long arm statute. In the past, for example, a company would
knowingly serve customers by providing goods and services in
With the Internet, clients come to
you from many states (and even around the world) without you, the
vender, knowingly soliciting in that state or country. Except for
commercial products, the only other "products" that
travel great distances in Internet transactions are data.
Previously, exchanging data over the Internet wasn't enough to
trigger the long arm statute.
Does it apply?
I'm sure you're wondering what
exactly is the kind of activity that'll trigger the long arm
statute. Well, here are some points to consider:
- The sliding scale.
In deciding whether or not a state's long arm statute
applies, the court of the plaintiff (visitor) state will
look at the interactivity between the Web site owner and
the Web site visitor. To determine interactivity, a body
of federal case decisions set out the "sliding scale"
standard, by which the court analyzes if the Internet
activity will trigger the state's long arm statute.
On one end of the scale there's the "passive Web
site," where information is posted and accessed with
little or no interactivity between the creator and user.
On the other end of this sliding scale is the "commercial
Web site," where repeated ongoing transactions and
exchanges of information between creator and user, or
"interactivity" with customers takes place.
Sites that are closer to the "commercial Web site"
end of the scale tend to trigger the long arm statute.
- Deeming a site
"commercial." In determining
whether a site is commercial, the court may also rely on
additional factors such as the profitability of a site
and the relationship between its creator and users. The
courts will examine whether or not the Web site owner
profits based on interactivity. The state will also
consider the relationship between creator and users.
The more commercial or direct and intimate the
relationship between Web site creator and user, the more
likely the long arm statute will apply. Different
considerations apply for consultation relationships and
those consultants who may be considered as practicing
Play it safe
Obviously, the law encompasses
many gray areas and different states have different
interpretations. These factors make it difficult to determine how
we as professionals sharing information via the Internet are
evaluated under the long arm statutes of different states.
By better understanding the
concept of these statutes, you can better design your Web site. A
suggestion: If you're designing a commercial site, include a
clause stating that for any litigation arising out of the
transaction, the user agrees to litigate the matter in the court
of the creator.
If your goal is to create an
educational or informational site, try to make your site passive.
Avoid soliciting, exchanging or retaining data with Web site
users. If you keep these things in mind when developing and using
your Web site, you'll be less likely to get involved in out-of-state
Dr. Peng is in private practice in
Castro Valley, Calif. He is an assistant clinical professor
at the University of California, Berkeley, School of Optometry.
Also at U.C. Berkeley, Dr. Peng is coordinator of ocular
telemedicine and the director of the China Optometric Resource
Development Program. He's the director of education at the
Pacific Laser Eye Center at U.C. Berkeley, as well. In addition,
he's also a consultant in various aspects of law involving
Mr. Rooney is employed at John
F. Kennedy University School of Law in the San Francisco Bay Area.
He's a part-time consultant in the legal aspects of technology
and the medical profession.
Optometric Management, Issue: February 2001