Let’s say you’re a web-site designer or web marketing consultant. And let us stipulate that you have a client who wants you to do something that is either illegal or merely unethical — something that either violates State or Federal government laws, the Google Terms-of-Service, or Google’s Webmaster Guidelines or Adsense Program Policies.
You complain to your unwise client that this could get both of you in trouble. “Don’t worry,” says the client, “we can draw up a contract that says you’re not responsible for this project. I’ll take all the blame.”
So, are you protected?
What If Someone Dies?
To illustrate this kind of situation, assume that what you’re doing might result in someone dying. Hard to imagine, but grant me that for a moment. Are you protected from the legal, criminal or civil penalties because you had an agreement with your “employer” that spelled out a claim that only the hiring client was responsible?
Sounds silly, of course. No you would not be protected. Both of you would go to jail, maybe even get the death penalty if it applies.
What If People Merely Lost a Limb?
What if the contracted project only resulted in maiming someone, or seriously injuring them — say it chopped off their arm, for example. Could you avoid responsibility there? Surely not. You could be both criminally and civilly prosecuted for damages, assault, conspiracy, etc.
Okay, What About Causing Financial Ruin?
Say your project only did financial damages to someone or some company. Who is responsible? Can you avoid paying damages, since you only did the web design of the damaging web-site? Or, if you gave advice about contents for the site, will your contract absolve you of any responsibility for possible damages?
It’s a slippery slope, extending down from death, maiming, financial ruin to mere insults; who IS responsible, you or the client?
The “Devil Made Me Do It” Defense
This sort of reasoning didn’t work for the accused Nazis at The Nuremberg Trials. They died, even though they were only following orders (so they claimed).
Aren’t Web-Site Contracts Different?
Working under a contract that says you aren’t responsible could help (possibly) give some protection from the client sites’ being banned by any 3rd party due to policies he recommends or requires of you. This is an EMPLOYMENT contract. You are a “work for hire” type employee, and he assumes all responsibility for your actions. That’s the point of the contract, one of them anyway. This is the intent of the document, but it may not survive scrutiny in cou
Just because you both signed it doesn’t mean a court will agree to it. The court didn’t sign it. In fact the court can dissolve it. Courts can “penetrate” the veil of protection enjoyed by parties to any agreement. A court can enforce the agreement, or completely erase it and treat the parties as unprotected actors; each responsible for his own actions. It’s done all the time in tax cases, for example.
The Judge Didn’t Sign Your Contract, You Did
When you walk into a court, you’re in a special place. The “boss” there is the judge (and/or the jury). While they CAN recognize instruments that create “fictional relationships” like partnerships, corporations, contracted work arrangements, etc., they are not required to. If they decide to set aside such a relationship, watch out! Each individual is on their own.
Even employees are required by the law to follow certain commonly accepted legal, moral and ethical practices.
Any contract between the client and the employed independent contractor, no matter what it says on its face, must still obey any and all controlling State and Federal laws governing the Internet. Further, they will both be liable, as agreed parties taking the contracted actions, to suffer any penalties exacted upon the action — whether such penalties are exerted or enacted by governing authorities, search engines, ISP companies or whoever.
Some contracts designed to avoid external authority, laws and regulations are really a CONSPIRACY instead of a contract. An agreement between two parties that any actions they take under the agreement that violate laws, terms-of-service, regulations of ISP firms and so on will only result in actions upon one of the signatories to the contract could easily be set aside by any court. The agreement presupposes that there will be a violation and tries to evade responsibility. This is certainly a kind of conspiracy.
A court friendly to the worker might preserve the contract to protect the worker against civil claims of damages in court — but only if the judge preferred to ignore the controlling body of common law pertaining to “generally accepted” practices.
Many judges can dissolve a contract if it flies in the face of a “reasonableness” argument. This always surprises people who are new to the courts. A judge and a jury (when convened) has enormous power. The best plan is to STAY OUT OF COURT. The way to avoid the court is to DO THE RIGHT THING in the first place.
The point is: Obey the laws governing the ‘net. Obey Google’s TOS. Obey the commonly understood ‘good practices’ of being a webmaster. You’re the professional. If you do something bad that was demanded by your client, any court or authority can judge you legally, morally and ethically (and even financially) responsible, setting aside any contract between you.
Not saying they WILL set it aside, only that they could and might do. Why not simply do the right thing in the first place.
If a web-design or internet marketing client insists that you break the rules, don’t take the job, contract or no contract.
We first published these comments in simpler form at WebProWorld.com, a great place to read lively discussions about web mastering topics.
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