I’ve just finished revising terms and conditions for a new e-commerce business. I’ve been getting a lot of these lately which may indicate that the economy is on the move. “Aye happen” as they say in my native Lancashire. Whatever the reason for this, it is worth saying a few words on the topic.
The first thing to note is that the website can be viewed from anywhere in the world. That can have legal consequences in some parts of the world for the people looking at it and possibly you if you do business with them through the site or find yourself in their country. In some countries, doing business through a website means that you are doing business in your customer’s location. And that may expose you to the consumer protection and other legislation of that country. An intention to trade in a country may be inferred from the use of a language other than English (including American spelling) and pricing in currencies other than sterling. You may have noticed that many multinational companies have separate sites for each country in which they do business. There is a reason for that. Each national site will have been designed to comply with the legislation of that particular country. If you want to do business with customers in say the USA or India, seek advice from a lawyer practising e-commerce law in the relevant country. If you don’t know such a lawyer, contact me. I’ve got to know lots through my membership of the WIPO arbitration, mediation and domain name panels and attendance at International Bar Association, Licensing Executives and Computer Law Association meetings over several decades.
Website Access Terms
The second thing to note is that a website is essentially a computer program and as such a literary work in which copyright can subsist. That is the case not just in the UK but in all the other countries that are party to the WTO Agreement, Berne and Universal Copyright Conventions as well as several bilateral agreements to which the HM government is party. In other words, most of the rest of the world. In order to access a website a browser has to reproduce the program that generates graphics, video, words and sounds on the viewer’s computer. Reproduction is an act restricted to the owner of the copyright and if you are the owner of any part of that code such reproduction requires your licence. You can grant such licence subject to certain conditions such as ownership of IP, acceptable use and so on. You can see an example of the terms that I usually impose here.
If you take any personal data from your visitors to your site you have to notify the Information Commissioner and you have to handle the data in accordance with the Data Protection Act 1998 and implementing regulations. It is good practice to state precisely what you will do with that data and that will require a privacy statement. Other countries make similar requirements. Fortunately, there is a very good tool for generating privacy statements called “the OECD Privacy Statement Generator”. I use this tool to produce my own and my clients’ privacy statements. And in this respect I am in good company because it was the Information Commissioner’s website which introduced me to that tool some years ago the people behind that website said that they used it for themselves.
Terms of Business
As I said in my article on e-commerce, there has been a measure of harmonization of e-commerce law at international and European level. These have been implemented in the UK by statute and statutory instrument. The main legislation of which the client and his or her lawyers should be aware are the Electronics Communications Act 2000 and by The Consumer Protection (Distance Selling) Regulations 2000, The Electronic Commerce (EC Directive) Regulations 2002and the Provision of Services Regulations 2009. You can get a lot of excellent information on the Business Link and Office of Fair Trading websites. If you have any specific enquiry or want me to draft such terms or conditions for you, you may request an estimate.
Finally you should spare a thought to dispute resolution. Unless you specify some other methods of dispute resolution, disputes will be resolved through civil litigation. But that is expensive and can lead to argument over jurisdiction and enforcement. Mediation followed by arbitration can be much faster and cheaper but you need to insert a dispute resolution clause into your agreement. In choosing a dispute resolution clause you may wish to consider NIPC Mediation and NIPC Arbitration. Again, I’ll be glad to advise you on choice of law, choice of jurisdiction, mediation and arbitration clauses if you want.