Internet Law: Less at Risk Doesn't Mean Never at Risk
Posted by: Nick Leiber on July 24, 2009
BusinessWeek’s SmallBiz team is introducing two new guest bloggers today. Attorney Jonathan I. Ezor, who wrote the post below, will be blogging about identifying and managing the risks that the Internet brings to business owners’ operations. Check back later today to meet our other new addition, franchising guru Don Sniegowski, who will blogging about developments that impact franchise buyers and veteran franchise owner-operators.
Business success is about risk. Taking a risk, spotting risks before they occur, accepting risk of failure, leveraging risk into reward. The best businesspeople have both a tolerance for risk and a healthy respect for it, and know that managing (rather than avoiding) risk is key.
Small business owners have the least cushion (and therefore the most exposure) when it comes to risk. Most small businesses operate close to the margin at all times, and managers don’t have the luxury of long, deliberate consideration of every issue. They must make decisions quickly and often with incomplete information, and therefore rely heavily on advisors and other professionals to help them identify, weigh and address the risks of different choices. When it comes to risk management, most businesspeople will immediately think of accountants and insurance brokers as the key resources on whom to draw.
Ideally, a business lawyer should also be part of the risk management team. Unfortunately, lawyers can be severely risk averse by habit and training, and it’s always safest for a lawyer (especially one sitting in a law firm office somewhere, billing by the 1/10th of an hour) to say “No” whenever a client asks “Can I do this” or “May I do that”? After all, if the lawyer says “Yes” and turns out to be wrong, the client could sue for malpractice! For too many lawyers, that’s the major risk they focus on, which doesn’t help the client assess and decide about the real risks involved in an action. After enough “safe” Nos from a lawyer, clients may simply stop asking.
In my own career of close to 20 years, I have tried to be an effective, and useful, risk manager for my clients, both as a law firm attorney and in-house counsel. My clients look to me to be part of the team and come up with solutions, not just talk about problems, and whenever possible, that’s what I’ve done. (It also makes my rare “No” more meaningful, especially when I’ve tried to come up with a different approach that would work.) In order to do this effectively, I have worked very hard to understand my clients’ technology and their businesses, to give the most targeted advice I can, and I have had a chance to positively impact on the business as a whole.
Another thing I have tried to do throughout my years of practice is to teach clients and other businesspeople about the kinds of risks unique to the Internet as a business tool, and to develop and spread best practices to manage them. About 12 years ago, I had the opportunity to write the “Attorney@Law” column (the word “blog” had not yet been coined) for the BusinessWeek.com Web site, focusing on then-emerging issues of Internet business law, from domain names to Web development to intellectual property. Then, most of the companies using the Internet were technology firms, and the issues were largely specific to them. Today, every company of every size in every industry is connected to the Internet, and therefore the entire world, and the legal and other risk issues become more complex (and interesting) almost by the minute. I was therefore thrilled to connect with the BusinessWeek team on Twitter (starting with editor-in-chief @JohnAByrne and his colleague @ShirleyBrady), and to get the opportunity to return to these (Web) pages once more to give businesspeople the information and tools they need to identify and manage the risks that the Internet brings to their operations.
In future blogs, I plan to write about everything from privacy and customer information, to sales tax and affiliate programs, to international law issues affecting even local companies. I’ll spend a lot of time on social media resources like Twitter and Facebook, particularly looking at marketing and reputational issues, and look at cybersecurity, cybercrime, and employee Internet use. I also welcome your thoughts, questions and suggestions; you can write to me at firstname.lastname@example.org, or find me on Twitter as @ProfJonathan. Thank you, and I look forward to being a (virtual) part of your own risk management team.
Jonathan I. Ezor is the director of the Touro Law Center Institute for Business, Law and Technology, and an assistant professor of law and technology. He also serves as special counsel to The Lustigman Firm, a marketing and advertising law firm based in Manhattan. A technology attorney for more than 15 years, Ezor has represented advertising agencies, software developers, banks, retailers, and Internet service providers, and has been in-house counsel to an online retailer, an Internet-based document printing firm, and a multinational Web and software development company.