Web Development Gone Awry: Identifying and Avoiding legal pitfalls for Web Site Developers and Clients
by K. William Kyros, Esq. Jan. 1999
I recieved a call in a few months ago from a web site developer who had just had one of her clients terminate a web site development and maintenance contract. The site which had taken over 100 hours to develop included sophisticated graphics, cgi scripts and numbered over a hundred pages. Since the site required frequent updating the agreement had spread the cost of development over the course of a year and included a lucrative maintenance schedule. The parties had a good relationship and the site won an award by a boutique review firm after being up and running for a short time.
After two months the relationship abruptly soured.
A rival developer critiqued the site and concluded it lacked META Tags, wasn't registered "properly" in the search engines and that its web address or URL was flawed because it "buried the site" in a subdirectory. The client with the site was persuaded to terminate/break its agreement with the original developer and hired the newcomer to "fix" the old site.
The newcomer may have avoided problems had he not emailed the original developer the substance of his criticism in what can best be described as a derisive manner. In the end legal action ensued in which more than one party was heard to exclaim "What the hell are META tags?" Ultimately the case never reached a dispositive conclusion as counsel for the rival developer withdrew from the case and the rival developer defaulted.
The net results were: the original party lost its original award winning web site (taken down by the disgruntled developer), the developer was out of a client and lucrative maintenance agreement and the rival developer was slapped with an unwanted law suit and default. Web development gone awry.Big Business
Web site development is big business. Garnter Group estimates that it will be a 6 to 8 billion dollar a year industry by 2000. With the internet and www threatening to restructure markets and alter the way companies do business internet stocks are soaring. The networked economy is here to stay and companies like Amazon (worth 4.2 Billion 12/98), America Online (17.7 Billion 12/98), and Yahoo (6.5 Billion 12/98) are reaping the benefits. E-commerce sites like amazon, e*trade, Ameritrade, ebay have given established companies a wake-up call.
The instrumentality of this revolution is the web site developer. About 40% of the Fortune 500 paid between $100,000 to $500,000 to develop sites, a smaller number (about 5%) paid between $500,000 and 1 Million, the remainder paid somewhere between $25,000 and $100,000. These numbers are only for the initial site construction and do not include ongoing maintenance, fine-tuning, storage & access etc. The field is wide open and no single design firm has become dominant as hundreds of small firms compete for big business. The New York firm 13pt.com which developed Barnes & Noble's foray into the www is a one man operation; the San Francisco firm www.construct.com which boasts 10 Fortune 500 clients including Sony, Microsoft and Sun Microsystems has 18 employees. It is truly an industry in its infancy, and the market continues to explode as more and more small businesses decide to set-up web sites.
Technology Meets Marketing
A careful observer will notice how a web sites design and other difficult to measure factors such as "ease of use" are a measure of the sites success or failure. Each week trade publications in the burgeoning cyber-industry feature columns and advice about web construction and design. Internet World, Mecklermedia's weekly "voice of e-business and internet technology" reviews sites each week with comments such as "Not only does the information architecture need help, but the overall design is lacking..."; "Each subsite has a unique navigation system"; "All the main information is easy to find with an intuitive frames-based system."
How does this play to your average technophobic business client who wants to set up shop on the internet? Terms such as "navigation", "subsite", "download speed", "Browser Crashes", "Meta Tags" are likely to fall on deaf ears or at least confused ones. The gap in knowledge (and terminology) between techie web developers and clients who want to establish web sites can and does lead to problems.
Problems: Sources of Conflict
Minor disagreements are the standard in any web site development arrangement. The process of creating a web site is often started with little direct input from the client and the final product is often the vision of the developer. Good communication and greater input from the client can help avoid classic aesthetic/ design disagreements which are often the cause of friction. The development of a web site entails certain unique areas of concern.
Print vs. Web
A common source of concern are the inherent differences between print media and designing layout and text in html. Clients frequently want to see their print materials reproduced on their web site with the same font, layout and graphics. A client who wants a brochure or other printed promotional materials published on the web needs to understand the limitations of the medium. The developer must explain the bandwidth limitations and download times, graphic sizes and font limitations. Clients frequently have difficulty understanding the difference between text created in html and text done in image editing programs. As a consequence they may request that all of the text look like the nicer typeface developed in Photoshop, without understanding how a page is created.
Generally, the people viewing a web page are using the default settings of the browser they are viewing the page from. On PCs this will probably be Times Roman, on Macs it will likely be Courier. Additionally, text is displayed at different font sizes in different browsers and text on PCs is generally displayed larger than on Macs. Personally I know unfamiliarity with this technology recently involved a client printing out pages of his web site and faxing them to his web developer. The client wanted to know why the font was so bizarre, it was "alleycat bop" (or some other obscure rarely used font on his PC). Apparently someone had simply changed the default fonts in Netscape. The problem was easily discovered and remedied. In other cases though the problem will only be apparent after the developer has fashioned a site they believed met the clients expectations, only to discover the client wants the site to look "exactly like my yellow pages ad". (Actual request). The point is that many clients will continue to equate web sites with print media. Solution: The best means to avoid a potential conflict is for developers to spell out exactly what they are capable of doing with the materials the client provides, the developer (and client) should attempt to incorporate this discussion into the signed agreement between the parties in the form of a contract memorandum.
Search Engines
Many web developers offer as part of their consulting services some degree of web site promotion after the finished product is ready to go online. Indeed the promotion of the site will often be viewed as more critical than the actual quality of the site itself, with most clients primarily concerned that their product or services are "found" by the millions of web surfers. Most of this promotion will involve "registering" the web site on the major search engines. Companies like doubleclick.com offer banner advertising on the search engines for thousands of dollars a month. However, most of the promotion in the search engines is free and involves "submitting" the site for inclusion into the search engines. The best known search engines (the big seven) are Yahoo, Alta Vista, Infoseek, Lycos, excite, hotbot & miningco. each use different indexing procedures. Yahoo and Miningco tend to be very selective and include only sites visited by a human being who decides that a particular site is worthy of inclusion. The other sites rely on software called "spiders" that surf the net and index words or phrases used in the site. There is often no sure fire method of guaranteeing that a particular site will be in the "Top 10" results of a given search, but every web developer tries. Techniques known as META Tagging and headlining are effective in some, but not other search engines. META tagging involves placing a series of key words or phrases in the html code that is not seen by the end user, but is designed to attract the attention of the "spiders"-software that indexes the material in the search engines. Headlining involves the more obvious practice of repeating certain words or phrases in the html title or body of the web site.
Registration and promotion in the search engines is an obvious, but often overlooked source of conflict. Here again the gap in knowledge between developers and clients may often result in confusion and frustrated expectations. Two issues are frequently encountered: Lag Time and Appearance/ranking.
Lag Time
The search engines take their time before indexing a site that is submitted or registered (if they include it at all). The reasons for this lag time vary, some of the software is slow, 100,000 new sites go online every month, the site is deemed unworthy by the web master at Yahoo etc. There is little a developer can do to account for the lag time which can be weeks or months, except to warn the client that registering a web site isn't the equivalent of putting an advertisement in the newspaper. A site needs to "grow," be indexed in the search engines, book marked by potential customers etc. before it generates a tremendous amount of activity. Developers often are faced with clients asking them why the site isn't in Yahoo: Answer: the site went up yesterday.
Ranking
Assuming the site is registered, it may not be exactly where the client would like it to be. " I want my site to be first..." This request is also a common one among developers, who must carefully explain the value of promotion as well as the inherent limitations of such efforts. As anyone who has ever surfed the web knows, the use of the search engines is an inexact science. A search for "Exxon" in Alta Vista for example, turns up an environmental groups site devoted to the the Exxon Valdez oil spill. For these reasons the best way for developers to stay out of trouble is to include an absolute disclaimer in the agreement, absolving the developer of any responsibility for placement in the search engines. Short of that the developer needs to make certain that the client understands how the search engines work (or do not as the case may be) and should attempt to incorporate that understanding in the contract.
Browser Software
Web sites are unique because their content is created in a format that allows the data to be displayed on all sorts of computers running all sorts of software. There are dozens of "browsers" available that people will be using to look at the content created for a particular site. A browser is a piece of software that interprets and displays the data on the site. While most of the users will be using Netscape or Internet Explorer, others will be using aol's browser, scooter, web reader, web viewer or others. Additionally many older versions of Netscape and Explorer are still installed. Each of these browsers interprets data differently and data on older browsers can be significantly altered. For example, both Netscape 2.0 and Explorer 3.0 fail to support a common layout tag called tables commonly used on web sites to align information. On these browers- sites which use tables to arrange data will appear "scrambled." Data such as images and text formerly neatly arranged in invisible tables will be stacked or shifted. Since it is impossible to guarantee a web site will look the same on every machine, the agreement should stipulate that the client acknowledges that certain end users may not have the technology to support certain functionalities of the site.
Comments or Questions? EmailDear Mr. Kyros,
I am currently a student hoping to be involved with the web development field. Your article, "Web Development Gone Awry", was so great! It highlighted a lot of topics that a new web-designer would not initially think about because he or she may be more consumed with landing a client first. Thank you so much for publishing some of your knowledge on the Net! I will definitely visit again and refer you to my fellow students.
Thank You,
Soo M. Lee
A future Web developer
