1) When developing a website, it is important to have a written agreement that outlines ownership of intellectual property rights and responsibilities for support and maintenance. 2) Websites must comply with various laws regarding required business information, content, accessibility, data protection, terms and conditions, unfair contract terms, and distance selling regulations. 3) Breach of e-commerce, data protection, or distance selling laws can result in enforcement action or lawsuits for damages. It is best to consult a lawyer to ensure legal compliance.

1. E-Commerce and the Law Tamzin Matthew Director of Legal Services and Company Secretary, British Marine Federation Group

2. What I’ll Cover Issues when buying a website Website content Note that this is only a a brief introduction

3. Buying a Website Get a written agreement Get a specialist lawyer to look at it – it is a good investment Be suspicious of a web business that doesn’t have written terms and conditions that fit the work they are doing If possible get the developer to warrant that the website complies with all applicable laws and regulations

4. Who Owns What? Make sure there is a clause that states who will own the intellectual property rights in the website – the default position in the absence of a written agreement to the contrary is that the developer retains all the rights – bad news if they go insolvent, or sell a copy of your website to someone else The least you should have is ownership of “look and feel” and surface layout, with irrevocable, exclusive licence for everything else Get an assurance that if they use information, software or pictures from third parties, that they will get written, legally binding permission, or you could get an unexpected bill!

5. Support and Maintenance You should agree terms for support and maintenance (fixing problems and answering your questions) and the same time as the agreement for the development of the website It’s important to agree timescales for responding to fault calls and fixing problems, as faults can lose you business

6. The Host with the Most You need to have a written hosting agreement (the agreement for keeping the website on a server, accessible by customers) The agreement should make it clear what the responsibilities of both parties are, including security and what amount of “down time” is acceptable Buy your own domain name, and consider buying all variants, rather than allowing the hosting company to own it

7. The Law and Website Content You should have terms and conditions of use, which should make it clear that your content is protected (if you haven’t already got a trade mark, then it’s wise to have one before you go on-line. Copyright arises automatically) You should also make it clear what law applies to use of the website (e.g. English)

8. Required Information E-Commerce (EC Directive) Regulations 2002 (“E-commerce Regs”) require that you display on your website in an easily and directly accessible, permanent format: Your business name, and geographical address Number and country of registration Details of any trade association membership including registration number VAT number An e-mail address for contact

9. Foreign Dimension E-Commerce Regs, state that you need only comply with English law when selling into other member states and those in the EEA (member states plus Norway, Lichtenstein and Iceland) The only exception is that your terms and conditions when selling to consumers should comply with all laws applicable in target markets (e.g. terms must be in French!) Note however that if selling into countries outside the EEA, their laws in relation to website content and selling may apply to you, so obtain advice on key markets and make it clear that you won’t sell into others Breach of the E-Commerce Regs will enable the wronged party to sue for damages for breach of statutory duty

10. Disabled Customers The Disability Discrimination Act applies to websites – you should make reasonable adjustments to ensure that disabled people can access your services, and therefore your website should be accessible to, e.g. the visually impaired Remedy is a claim for damages for breach of statutory duty

11. Data Protection If you are collecting personally identifiable information, you should tell people what you will do with it, preferably in a statement which they must be given the opportunity to read, and state they have read prior to submitting the information If you are hoping to market to enquirers and customers by text or e-mail note that either you must have obtained: 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 an opt-in – they indicate that they are happy to receive that kind of marketing for the time being Breaches are enforceable by notice given by the Information Commissioner – failure to comply is a criminal offence Individuals can also sue for damages for breach of the data protection principles

12. Terms and Conditions Always get these drafted or checked by a lawyer Get them reviewed as the law changes, or as new issues/products come up Make sure that people understand exactly what they are getting, either from the terms, or from information on your site – distance selling regulations require it in any case Play fair, as unfair contract terms will not be enforced by a court and can be actionable by the OFT as unfair practice (they can obtain an injunction to prevent further use)

13. Unfair Contract Terms These are terms in consumer contracts that contrary to the requirements of good faith, create a significant imbalance between the rights and obligations of supplier and customer A new OFT guide provides examples of outlawed terms: e.g. “ Your signature constitutes acceptance that all merchandise and indicates 100 per cent satisfaction as per order” (tries to prevent consumer from having a reasonable time to inspect goods by making delivery signature acceptance) 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 not understand them

14. Distance Selling The Regulations require you to give: Main characteristics of goods and services, price including taxes, delivery costs, payment and delivery arrangements; periods during which any prices or special offers last; whether or not substitutes will be given if ordered goods are not available; and Details of a 7 working day cooling off period, which runs from date of delivery (note software and audio and visual recordings that have been unsealed by the consumer are exempt) This needs to be confirmed in writing

15. Distance Selling You also need to provide details of: Right of cancellation – how it works, and who will pay return costs if exercised Address for complaints Information on after-sales service and guarantees All the information needs to be provided prior to conclusion of the contract If the consumer’s rights are not honoured, they can sue for damages

16. In General Use a lawyer Communicate with customers clearly and simply so that there are no surprises Play fair, and you can’t go too far wrong If you have a dispute, call me! 01784 223729, Tmatthew@britishmarine.co.uk