Although the festive season seems a distant memory now to most of us, there are some retail website operators who are still feeling the effects of a Yuletide clampdown by the Office of Fair Trading ("OFT"). This got me thinking about how many website operators are not making the most of their websites and so I put together a few tips and hints on how to ensure your website complies with all relevant laws and maximises its potential. You can find these below. But first, a bit about how the OFT highlighted this issue:
OFT Survey
Over the busy Christmas shopping period, the OFT carred out a "web sweep" of UK retail websites to ensure their compliance with online shopping laws with the aim of identifying websites ""who need help bringing their practices up to scratch".
The OFT chose to take this action in response to the results of its survey of internet shopping, published in June, which found (amongst other things) that:
- 28% of online traders surveyed had limited awareness or were completely unaware of internet shoppping laws;
- 66% of online traders surveyed had never sought advice on internet shopping laws;
- 16% did not inform online shoppers of their legal right to cancel; and
- 59% imposed conditions which impeded online shoppers' right to cancel.
This cross-section suggests that there is an alarming amount of UK retail websites which do not comply with online shopping laws.
We must remember that it is not only retail websites who must comply with online legislation - there is a raft of online laws which apply to various websites, from the most basic, information-only sites to the more complicated forums allowing UGC upload. If the retail websites are not bothering to ensure compliance, it is likely that there are a large number of non-retail websites that are similarly gung-ho.
As there is a variety of legislation to cover websites, so there is a variety of potential penalties for the non-compliant. These could range from users suing a retail website for breach of consumer protection laws to third parties suing a website forum operator for defamation or copyright infringement.
Tips and Hints
With all of the above in mind, here are some tips and hints I have thought up. They are by no means comprehensive and as always, they do not constitute legal advice. In fact, the best tip of all - well we would say that! - is to seek specialist legal advice:
- Ensure compliance with relevant laws and reduce the risk of being penalised by ensuring you have a comprehensive set of terms and conditions and privacy policy which are tailored to your particular website. These will help to shield you from liability for such matters as copyright infringement, defamation, and data protection.
- Protect your business assets and increase the value of your website, again by ensuring you have a comprehensive set of terms and conditions and privacy policy written in plain English. They'll vary from site to site, depending on whether you're selling goods or services or just providing information only. If you're hosting user generated content, you need to think about liability issues and how that UGC can be used and re-used by other users and possibly by you as well as the site operator.For example, if your website allows users to contribute and upload UGC, you need a licence from users to display their content. You can either create a bespoke licence or you can use the Creative Commons Licence. CC licences work well for non-commercial use but care needs to be taken if content may move from non-commercial to commercial re-use. So take advice first.
- Once you have the terms and conditions, display a link to them on every relevant page of the website. In particular, refer users to the privacy policy on every page in which they are invited to submit personal information.
- If you change the terms and conditions, email notification of such change to users where possible. Simply posting changes to the site may not be enough.
- Ensure you have the right to use the relevant intellectual property from anybody who has worked for the website. Under English copyright law, the copyright owner is the person who created the work in question (unless an employee creates the work in the course of his employment, in which case the work is owned by the employer). Even where a person is commissioned to create a work, it will not be owned by the commissioner until a valid written agreement is in place. For example, if you engage a web developer to create a website, he will be the owner of all design and software he creates unless a valid written agreement transfers ownership to you. And if a third party registered your domain name, have this transferred as well.
- Ensure any advertising on your website complies with all applicable legislation and the CAP Code (which is the industry code applicable to online advertising). For example, do not display a banner advertisement for an online poker company if access to your website is not restricted to over 18s. The position regarding services such as those provided by Google's Adsense is complicated as you do not have the same level of control. You may want to seek specialist legal advice.
- If you send a newsletter to users, include an "unsubscribe" link in the email (or an alternative method of unsubscribing if by post) and always offer users ways in which they can amend any personal details you may hold.
- If your website allows users to upload UGC, include a function whereby users can report offensive or objectionable content to you and act promptly to remove any such content. However, do not actively or regularly monitor your website for such content because by doing so, you could deny yourself of certain exemptions from liability available to you for content which you merely host (but over which you exercise no editorial control.
- If your website sells goods or services, there are more layers of legislation with which it is important you comply. Unless you want the OFT knocking at your door...or worse...legal action from a disgruntled consumer...or bad publicity.
There is also new legislation scheduled to come into force in April this year implementing the Unfair Commercial Practices Directive which will make it illegal for businesses (and websites) to represent themselves falsely to consumers. This will cover the situation, for example, where a restaurant posts glowing but falsified reviews of itself on its website. More on this, however, in April.
Laurie Kaye/Yasmin Joomraty
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