Startup and video game law, from a Canadian and U.S. perspective
Balancing Growth with Legal Compliance
Frequently, large technology companies face lawsuits in foreign courts over their failure to comply with foreign laws, primarily those concerning privacy, sales and consumer rights. In Germany, WhatsApp’s Terms of Service violated consumer protection laws; in Canada, Facebook is challenging the application of Canadian privacy law; and in Australia, Valve’s no return policy allegedly violates consumer protection laws. As your startup grows, users may come from major markets across the world and create a challenge – how to balance growth with legal compliance?
Governing law clauses (X law applies and X courts have jurisdiction) are frequently unable to prevent the application of foreign laws to your company – just ask WhatsApp, Facebook or Valve. Therein, to comply with the laws of only one market naturally leaves your startup exposed to legal liability for non-compliance in other markets. While I suggest considering compliance with the law of each market in which you gain traction, I also recognize that cost concerns and a startup’s focus on growth strategies means that compliance is always on the back burner.
When balancing growth with legal compliance, consider:
1. Size of your company in each market: the larger your company is in a market, the more likely the laws of that market will be asserted against you.
2. General size of your company: the larger (and wealthier) your company is, the more likely the laws of foreign markets will be asserted against you.
3. Potential liability: How large is your company’s exposure to liability for non-compliance in each market? How comfortable is the company with this exposure?
4. PR: Does non-compliance create a substantial chance for bad PR in that market?
Small startups (and large technology companies) frequently focus on growth over legal compliance. Indeed, at the start of your company, potential liability is low as the company is flying under the radar – here, focusing on growth makes sense. Once you company grows, legal compliance should be weighed and constantly reevaluated as laws, and your company, change.