By Tracey Dickens, Partner, Birkett Long LLP
The number of online businesses is growing at an ever-increasing pace. This has led to a multitude of legal, regulatory and transparency requirements.
I am often asked to review commercial contracts and notices for online businesses and mostly, information will have been copied from another website. Many fail to appreciate that it is unlikely that the terms and conditions, privacy notice, or other information from another website will be suitable or appropriate for their own business.
There are key aspects online business owners should consider when starting up, reviewing, or updating their operations and their website.
What constitutes a ‘commercial’ or e-commerce website? Any website which gives information about a company or a firm (including not-for-profit) could be considered as engaging in e-commerce. Therefore, several issues should be considered by business owners when they are planning or periodically reviewing their existing operations and associated legal obligations.
Intellectual property: It’s likely that your website will be, or has been, created by a web-designer, or perhaps a third party has been commissioned to design or modify your existing site. The first owner of any copyright will probably lay with the author, i.e. the web-designer and not you as the commissioner. Therefore, it is important to consider, ideally before the start of any website project, the answers to the following questions:
• Who has the overall control of the website project? Have they been given enough authority to enter into contracts with the website designers and the web hosting provider, and where appropriate, deal with the financial institutions who will process credit card transactions?
• Who owns the code and any materials in relation to the website?
• Is there any written contract with the web designer?
• Has there been a written assignment of copyright from the web-designer to the business owner?
• Have anyone’s IP rights been infringed?
• Who has access to the ‘back-end’ of the site and will the web-designer’s assistance be required every time a small change needs to be made to the site?
• Is there a disaster recovery plan and who provides back-up support and services if a crisis occurs?
Contract formation: This should include:
• A clear link to your business’ standard Terms and Conditions, which must be freely viewable and downloadable before acceptance. This should include an “I have reviewed and accept” box for the customer’s acceptance after reading.
Consumer Contract Regulations: These regulations implement the Consumer Rights Directive and give the customer rights (such as the right to cancel) when shopping online, so they’re covered if things go wrong.
Data protection: This includes IP rights, contractual rights, regulatory requirements and Privacy Notices. There is no such thing as a ‘standard’ Privacy Notice or Policy; each business must consider its own approach to dealing with the flow of personal data.
If you would like to discuss your website or online business in more detail, please contact Tracey Dickens on E: email@example.com T: 01206 217326 or visit: birkettlong.co.uk