Information technology is moving faster than the law. However, contrary to popular belief, the virtual market place is not a legal free for all. Regulatory uncertainty has transformed the net into a potential legal minefield. E-tailers should make careful preparations before launching headlong into cyberspace.
Clarks Business & Property Lawyers suggest 10 simple tips for safer cyber dealing.
1. Sign post your contractual terms
Each page of your web site should contain a prominent link to a description of your contractual terms and conditions, including details of warranties, refund and return policies and any delivery, procedures, charges and times (consistent with OECD guidelines).
2. Consider copyright issues
Just because it's out there, doesn't mean you can have it. Should you engage a web developer to create your web site, be sure to draft an agreement outlining who owns copyright in each element of the site. For those elements owned by the developer, clearly state in the agreement what you can do with these elements. Furthermore, specify in the agreement who is to obtain the appropriate permissions or licences for the inclusion of any third party content in your site.
To protect your own copyright interests, it is important to include in your web site a copyright statement, which can be accessed by means of a clear link from each web page. The statement should detail who owns copyright of material in the site; the permitted use of the copyrighted material by site visitors; who visitors should contact to request permission for use of the material.
Further copyright protection can be gained using technological means, for example, encryption of information or the use of a password to download certain material.
3. Liability for unauthorised third parties content posted on the site.
If you include a billboard or newsgroup in your web site, be aware that you may be responsible for any defamatory, pornographic, or otherwise offensive content posted on it by your users.
To avoid liability for defamatory content posted on billboards or newsgroups in the site, insert a disclaimer relinquishing responsibility for the control and monitoring of content of the relevant web pages.
Provide a mechanism for receiving complaints about the content of your site and remove any questionable material as soon as you are made aware of an objection. (Note the common law and provisions of the Broadcasting Services Amendment (Online Services)Act 1999 and The Copyright Amendment (Digital Agenda) Bill 1999).
4. Ensure information is accurate and regularly up-dated
Regular checking and up-dating of all product and pricing information, which is included in your web site will assist you to avoid legal disputes and also keep your customers happy.
Pricing
Advertised prices should be clear and accurate and customers should not find themselves caught by hidden charges. Any additional costs your customer may incur such as customs duty, GST, shipping costs, and postage should be prominently displayed on your web site and the currency in which your prices are calculated should also be made clear. For added convenience, you may wish to refer your customers to an online currency converter such as www.x-rates.com.
Careful checking of prices is also in your interests. Chat rooms, billboards, newsgroups, email and shopping "bots" (automated price comparison search engines), will cause pricing errors on your site to spread rapidly. This could lead to substantial losses for your business.
Products
Legal consequences may also flow from displaying outdated or inaccurate product information. Product descriptions should be clear and accurate and the date and time of information up-dates should be indicated.
5. Request permission to link
Although many site owners will be happy for you to provide a link between your web site and their own, it is wise to seek permission before doing so.
Avoid "deep linking" (linking directly to an internal web page of another site) and "framing" (displaying information from another site within your own web site frame).
Include a disclaimer that you are not responsible for the content in the linked sites or any goods or services available from them.
Frequently check your web links to ensure that the linked sites are still active and inoffensive.
6. Confirm transactions
Provide your customers with a record of their completed transaction. Transaction records should include details of the goods or services the customer has agreed to purchase, the purchase price and expected delivery date.
7. Secure confidential information and maintain customer privacy
Customers will be encouraged to visit your site and submit personal information if clear disclosures are made as to why the information is being collected and how it will be used.
Clearly display your privacy policy on your web site, including a clear explanation of how financial information will be handled and a warning to your customers that sending confidential data to your site is at their own risk.
Exercise particular care when handling confidential information such as credit card or personal details, which is sent over the Net. If you wish to use personal information for research or marketing purposes or pass it on to others, seek permission from your customers. Customers will not thank you for receiving unsolicited email. Note, an "opt-in" provision, which requires customers to agree to the use is probably more customer friendly than an "opt-out" provision which permits the use of the information unless the customer objects.
8. Post your contact details on your site
A major deterrent for online purchasing is the difficulty in seeking redress should the transaction not be completed to the customer's satisfaction.
Displaying your email and telephone numbers in addition to an "offline" or physical business address and ACN in a prominent location on your site will inspire consumer confidence in your business.
9. Consider Foreign Law
Your web site will be accessible worldwide. If you wish to deal only within a limited region, state this on your web site. However, if you wish your business to have a global reach, the contents of your web site must comply with the laws of all target countries.
10. Seek Legal Advice
Before launching your web site, consult a legal practitioner who can advise you in detail on the above matters and any other issues particular to your specific online business.
This is a very brief introduction to this aspect of E-tailing and is not intended to be legal advice. This publication cannot be relied on as a substitute for appropriate legal advice suited to your circumstances. Given that this is the case, you should seek and retain the advice of a solicitor if you require a comprehensive and up to date analysis of the law pertaining to your circumstances.
March, 2001
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