Tamara Wilhite is a technical writer, industrial engineer, mother of two, and published sci-fi and horror author.
The EU has issued a number of regulations, for better and for worse, which affect web design if you want to work with European customers. We will specifically look at how GDPR, Article 11, Article 12 and Article 13 could affect the design of a typical website.
The General Data Protection Regulation 2016/679 or GDPR was passed in 2016. The EU GDPR went into full effect in 2018. There are several ways this affects your web design and customer relationship management.
Websites are only supposed to collect the information they actually need; you can’t track them off your site (talking to you, Facebook). You have to inform people why you need this information, whether it is necessary to ship an order or identify hack attacks as quickly as possible. You must give them the option to opt out of cookies as well as full information as to how this could affect the performance of the site. If opting out of cookies adds more steps to checkout, tell them that.
Your site must allow customers to request a copy of the personal information you have on them. This makes having an integrated customer relationship management system connected to inventory and your website incredibly valuable, since you can pull up both all orders the person placed and the customer records themselves. You are required to give them information on how you’ll use their information, whether you analyze it in aggregate to understand where your customers come from or understand how they use the site so you can improve its performance.
Another issue is opt-in consent. You cannot automatically enroll them in your email marketing system because they bought something from you. They have to have a clear opt-in to marketing content. The opt-in includes cookies, too. A good solution for this is presenting the informational notification with a button that states “I accept cookies” before they can see your website. Just make sure it is mobile friendly, or your customer will hate you. Your SEO will suffer, too, if the notifications are so onerous no one stays long enough for their visit to count in your favor.
IT security becomes paramount. The literal cost for data breaches can certainly be much higher if you didn’t safeguard client information.
Article 11 and Article 13
Articles 11 and 13, when passed by the EU, were immediately mocked via memes that they have a fair chance of banning. At the same time, Cory Doctorow roundly condemned it in an article published by the Electronic Freedom Foundation. But how does this regulation affect the average website administrator?
These articles were approved by the EU and sent on to member states for approval through 2018 and 2019. However, given the state of the EU, we’re going to give advice as it if were already absolute law in the EU.
In theory, a U.S. website could be taxed for posting a link to a European news article under Article 11. The solution here is simple: link back to American sources and others the EU isn’t going to penalize. A potential solution is reverting to the landing page style of links. At the end of your commentary, you’d state “to read the article at the source, click HERE” with a link back to the source page embedded in the word “here.”
I think the EU articles limit your ability to quote from articles with European publications. This inadvertently gives extra weight to non-EU publishers. And it incentivizes ignoring the source, vaguely referencing it without linking to it, and creating your own content. That, therefore, has the least impact unless you’re a news aggregator in whole or in part.
Article 13 is the section that applies to memes. I don’t think this rule is going to outlaw memes, but it is going to crimp the supply. Public domain images remain public domain, so in theory, we could meme the heck out of them. Businesses that want to put images in the public domain via Wikimedia Commons and other public sites with general licensing can capitalize on this. Yes, this does take the risk that someone takes your image and associates a lousy message with it.
A major issue is the application of the copyright restrictions to any song, image and video snippet. A movie review becomes almost impossible unless you don’t show clips from the movie or trailer, an image from the movie or book it is based on or any other content unless you, yourself create it. In theory, you could do the movie review wearing a T-shirt sold to fans. Interviews with anyone involved in its creation are shareable as long as you’re the reviewer. The logical short-term result is a shift to “talking head” discussions about the movie akin to PBS political discussion shows. Everyone who cares to speak is sitting in a group in front of the camera and talking about what they thought about the show, the movie and the book with only generic props if any.
One of the serious problems with Article 13 is that it runs the risk of copyright lawsuits if you include images of landmarks, products, and artwork by people who defend such claims. Your business is certainly able to post a picture of your employees in your facility or in front of it, as long as you keep everything else in the background to a minimum. Public domain images of public places under a liberal license are probably fine. Images you take of your own products are yours to do with as you please, so you’re free to post them on social media and your website. In fact, you can post a fair use license of these images with a backlink to your site and hope that others share the image on their own sites.
The biggest immediate hassle is scrubbing your site of anything that could get you sued by anyone in the E.U, including copyright trolls. You may want to copyright and watermark your own images and video to minimize the chance someone else uses it and then says they have the right to use it.
The “upload filter” social media sites are putting in to limit the sharing of potentially copyrighted images is going to create tons of problems. Want to share an interview you did? Do you have permission from the blogger or news organization to share it? Good luck uploading it. The average person is going to run into problems, and they’re going to face Big Tech companies that already ignore general user issues in favor of big businesses paying a lot to advertise on the platform or privileged content creators that have a large enough criteria.
In fact, YouTube has already had a bad track record of ignoring pleas from people they demonetized and shut down, refusing to even answer. That was the reason YouTube got shot up by an atheist Iranian vegan activist not too long ago. Expect to see more of this, though I hope that doesn’t include actual violence against Big Tech companies that black hole requests for technical service or an accounting of oppression via algorithm. Given the EU mandate, we can expect more purges of social media accounts for real and imagined infringement of intellectual property rights.
Yet Big Tech would likely favor rules like Article 13. They have the literal bandwidth, processing power, and personnel to implement content scanning and rapid responses to IP violation reports, real or not. Small platforms can’t, so this massive government regulation puts a hard floor on how small a social media site can be if it wants to have any EU users, unless it wants to revert to a text-based interface or be judgment-proof like 4Chan. Ironically, the EU rules end up limiting how much we can break up Big Tech firms like Facebook and Google, because spin-offs that are too small end up being too small to comply with government regulation.
I already brought up the possibility of excluding EU users from using your site or buying your product, though that’s going to have financial repercussions.
An interesting potential issue is the copyright infringement cases that could arise from the use of code someone has copyrighted. One safe-harbor strategy is to go open source for everything. Another is to rely on programmers that create new code for every project, though that raises costs. An alternative is to rely on corporate templates to design websites, though they may raise the prices for such a service.
Article 12 is so narrow in scope that many don’t realize it even exists, since it isn’t getting nearly as much press. I guess meme wars are more interesting. Article 12 limits the ability to share any images or video of game play of any sport unless they are the organizers. Better take down those videos of people scoring goals and pictures of the sports team you sponsored from your website.
© 2018 Tamara Wilhite
Tim Truzy from U.S.A. on September 22, 2018:
Recently, I received a notification from a search engine regarding these new regulations. It's interesting how easily now within the EU a person could be sued or run the risk of other issues. Your article provides good guidance and needed clarification on this topic, Tamara.
Thanks again for a well written and researched article.
Much respect and admiration,