E-Commerce and E-Commerce and the Law the Law

Tamzin MatthewTamzin MatthewDirector of Legal Services and Director of Legal Services and

Company Secretary, British Marine Company Secretary, British Marine Federation GroupFederation Group

What I’ll CoverWhat I’ll Cover

Issues when buying a websiteIssues when buying a website Website contentWebsite content Note that this is only a a brief Note that this is only a a brief

introductionintroduction

Buying a WebsiteBuying a Website

Get a written agreement Get a written agreement Get a specialist lawyer to look at it – it is a Get a specialist lawyer to look at it – it is a

good investmentgood investment Be suspicious of a web business that doesn’t Be suspicious of a web business that doesn’t

have written terms and conditions that fit the have written terms and conditions that fit the work they are doingwork they are doing

If possible get the developer to warrant that the If possible get the developer to warrant that the website complies with all applicable laws and website complies with all applicable laws and regulationsregulations

Who Owns What?Who Owns What?

Make sure there is a clause that states who will own the Make sure there is a clause that states who will own the intellectual property rights in the website – the default position intellectual property rights in the website – the default position in the absence of a written agreement to the contrary is that the in the absence of a written agreement to the contrary is that the developer retains all the rights – bad news if they go insolvent, developer retains all the rights – bad news if they go insolvent, or sell a copy of your website to someone elseor sell a copy of your website to someone else

The least you should have is ownership of “look and feel” and The least you should have is ownership of “look and feel” and surface layout, with irrevocable, exclusive licence for surface layout, with irrevocable, exclusive licence for everything elseeverything else

Get an assurance that if they use information, software or Get an assurance that if they use information, software or pictures from third parties, that they will get written, legally pictures from third parties, that they will get written, legally binding permission, or you could get an unexpected bill!binding permission, or you could get an unexpected bill!

Support and MaintenanceSupport and Maintenance

You should agree terms for support and You should agree terms for support and maintenance (fixing problems and maintenance (fixing problems and answering your questions) and the answering your questions) and the same same timetime as the agreement for the as the agreement for the development of the websitedevelopment of the website

It’s important to agree timescales for It’s important to agree timescales for responding to fault calls and fixing responding to fault calls and fixing problems, as faults can lose you businessproblems, as faults can lose you business

The Host with the MostThe Host with the Most

You need to have a written hosting agreement You need to have a written hosting agreement (the agreement for keeping the website on a (the agreement for keeping the website on a server, accessible by customers)server, accessible by customers)

The agreement should make it clear what the The agreement should make it clear what the responsibilities of both parties are, including responsibilities of both parties are, including security and what amount of “down time” is security and what amount of “down time” is acceptableacceptable

Buy your own domain name, and consider Buy your own domain name, and consider buying all variants, rather than allowing the buying all variants, rather than allowing the hosting company to own ithosting company to own it

The Law and Website ContentThe Law and Website Content

You should have terms and conditions of use, You should have terms and conditions of use, which should make it clear that your content is which should make it clear that your content is protected (if you haven’t already got a trade protected (if you haven’t already got a trade mark, then it’s wise to have one before you go mark, then it’s wise to have one before you go on-line. Copyright arises automatically)on-line. Copyright arises automatically)

You should also make it clear what law applies You should also make it clear what law applies to use of the website (e.g. English)to use of the website (e.g. English)

Required InformationRequired Information

E-Commerce (EC Directive) Regulations 2002 E-Commerce (EC Directive) Regulations 2002 (“E-commerce Regs”) require that you display (“E-commerce Regs”) require that you display on your website in an easily and directly on your website in an easily and directly accessible, permanent format:accessible, permanent format:– Your business name, and geographical addressYour business name, and geographical address– Number and country of registrationNumber and country of registration– Details of any trade association membership Details of any trade association membership

including registration numberincluding registration number– VAT numberVAT number– An e-mail address for contactAn e-mail address for contact

Foreign DimensionForeign Dimension

E-Commerce Regs, state that you need only comply with E-Commerce Regs, state that you need only comply with English law when selling into other member states and those English law when selling into other member states and those in the EEA (member states plus Norway, Lichtenstein and in the EEA (member states plus Norway, Lichtenstein and Iceland) Iceland)

The only exception is that your terms and conditions when The only exception is that your terms and conditions when selling to consumers should comply with all laws applicable in selling to consumers should comply with all laws applicable in target markets (e.g. terms must be in French!)target markets (e.g. terms must be in French!)

Note however that if selling into countries outside the EEA, Note however that if selling into countries outside the EEA, their laws in relation to website content and selling may apply their laws in relation to website content and selling may apply to you, so obtain advice on key markets and make it clear that to you, so obtain advice on key markets and make it clear that you won’t sell into othersyou won’t sell into others

Breach of the E-Commerce Regs will enable the wronged Breach of the E-Commerce Regs will enable the wronged party to sue for damages for breach of statutory dutyparty to sue for damages for breach of statutory duty

Disabled CustomersDisabled Customers

The Disability Discrimination Act applies The Disability Discrimination Act applies to websites – you should make reasonable to websites – you should make reasonable adjustments to ensure that disabled adjustments to ensure that disabled people can access your services, and people can access your services, and therefore your website should be therefore your website should be accessible to, e.g. the visually impairedaccessible to, e.g. the visually impaired

Remedy is a claim for damages for Remedy is a claim for damages for breach of statutory duty breach of statutory duty

Data ProtectionData Protection

If you are collecting personally identifiable information, you If you are collecting personally identifiable information, you should tell people what you will do with it, preferably in a should tell people what you will do with it, preferably in a statement which they must be given the opportunity to read, statement which they must be given the opportunity to read, and state they have read prior to submitting the informationand state they have read prior to submitting the information

If you are hoping to market to enquirers and customers by text If you are hoping to market to enquirers and customers by text or e-mail note that either you must have obtained:or e-mail note that either you must have obtained:– a “soft opt in” – they have made enquiries that suggest they would like a “soft opt in” – they have made enquiries that suggest they would like

to buy, and you are selling similar goods to the ones enquired about, or to buy, and you are selling similar goods to the ones enquired about, or – an opt-in – they indicate that they are happy to receive that kind of an opt-in – they indicate that they are happy to receive that kind of

marketing for the time beingmarketing for the time being Breaches are enforceable by notice given by the Information Breaches are enforceable by notice given by the Information

Commissioner – failure to comply is a criminal offenceCommissioner – failure to comply is a criminal offence Individuals can also sue for damages for breach of the data Individuals can also sue for damages for breach of the data

protection principlesprotection principles

Terms and ConditionsTerms and Conditions

Always get these drafted or checked by a lawyer Always get these drafted or checked by a lawyer Get them reviewed as the law changes, or as new Get them reviewed as the law changes, or as new

issues/products come upissues/products come up Make sure that people understand exactly what they Make sure that people understand exactly what they

are getting, either from the terms, or from information are getting, either from the terms, or from information on your site – distance selling regulations require it in on your site – distance selling regulations require it in any caseany case

Play fair, as unfair contract terms will not be enforced Play fair, as unfair contract terms will not be enforced by a court and can be actionable by the OFT as unfair by a court and can be actionable by the OFT as unfair practice (they can obtain an injunction to prevent practice (they can obtain an injunction to prevent further use)further use)

Unfair Contract TermsUnfair Contract Terms

These are terms in consumer contracts that contrary to the These are terms in consumer contracts that contrary to the requirements of good faith, create a significant imbalance requirements of good faith, create a significant imbalance between the rights and obligations of supplier and customerbetween the rights and obligations of supplier and customer

A new OFT guide provides examples of outlawed terms: A new OFT guide provides examples of outlawed terms: – e.g. “e.g. “Your signature constitutes acceptance that all merchandise and Your signature constitutes acceptance that all merchandise and

indicates 100 per cent satisfaction as per order” (tries to prevent indicates 100 per cent satisfaction as per order” (tries to prevent consumer from having a reasonable time to inspect goods by making consumer from having a reasonable time to inspect goods by making delivery signature acceptance)delivery signature acceptance)

– e.g. terms that say that the consumer will be deemed to have read and e.g. terms that say that the consumer will be deemed to have read and understood the terms, when clearly they had no such opportunity or did understood the terms, when clearly they had no such opportunity or did not understand them not understand them

Distance SellingDistance Selling

The Regulations require you to give:The Regulations require you to give:– Main characteristics of goods and services, price including Main characteristics of goods and services, price including

taxes, delivery costs, payment and delivery arrangements; taxes, delivery costs, payment and delivery arrangements; periods during which any prices or special offers last; periods during which any prices or special offers last; whether or not substitutes will be given if ordered goods whether or not substitutes will be given if ordered goods are not available; andare not available; and

– Details of a 7 working day cooling off period, which runs Details of a 7 working day cooling off period, which runs from date of delivery (note software and audio and visual from date of delivery (note software and audio and visual recordings that have been unsealed by the consumer are recordings that have been unsealed by the consumer are exempt)exempt)

This needs to be confirmed in writingThis needs to be confirmed in writing

Distance SellingDistance Selling

You also need to provide details of:You also need to provide details of:– Right of cancellation – how it works, and who will Right of cancellation – how it works, and who will

pay return costs if exercisedpay return costs if exercised– Address for complaintsAddress for complaints– Information on after-sales service and guaranteesInformation on after-sales service and guarantees

All the information needs to be provided prior All the information needs to be provided prior to conclusion of the contractto conclusion of the contract

If the consumer’s rights are not honoured, they If the consumer’s rights are not honoured, they can sue for damagescan sue for damages

In GeneralIn General

Use a lawyerUse a lawyer Communicate with customers clearly and Communicate with customers clearly and

simply so that there are no surprisessimply so that there are no surprises Play fair, and you can’t go too far wrongPlay fair, and you can’t go too far wrong If you have a dispute, call me! 01784 If you have a dispute, call me! 01784

223729, Tmatthew@britishmarine.co.uk223729, Tmatthew@britishmarine.co.uk