Legal aspects of website construction / update

This article covers some of the legal aspects that website owners should consider when setting up or updating a website.

Agreements for Work/Content

When commissioning a website ensure an agreement is in place between the parties detailing who will own the intellectual property rights (IPR) in the website and its design, video/digital content, graphics and databases etc. Under copyright law, in absence of other arrangements the designer/constructor would own the IPR in the website.

The IPR should be assigned to the commissioner, so that the necessary business use may be made. Additionally, where third party content is used (such as music or photographs/film video clips) license(s) may be required for legal use of such materials.

Regulations and website

There is a raft of regulations to be complied with, particularly when dealing with consumers for the sale/provision of goods/services although some items are exempted for information only websites. A shake up of consumer law both in the UK / EU is proposed to replace existing legislation on sale/supply of goods and services to cater for the enhanced E-trading environment.

E-commerce: regulations state the information must be provided to ensure fairness and clarity of information to consumers. The E-commerce and Distance Selling Regulations must be complied with within the EU providing: conditions of sale, delivery terms, guarantees, returns policy/refunds etc. Ryanair has recently failed to do this in respect of price guarantees (given its numerous surcharges) and was referred to the Office of Fair Trading and the Advertising Standards Agency (as was Easyjet). This resulted in Ryanair having to amend its website advertising and stop use of pre-checked boxes indicating consent for charges regarding insurance and checked- in luggage. Easyjet has yet to do the same.

Companies: must also comply with the 2006 Companies Act requirements regarding company identification/information on the website. There are plans for a cross –EU enhanced organisation of Trading Standards and Competition authorities which will register consumer complaints and take action to close down sites under the local Fraud and Computer Misuse Acts to reduce web based scams.  

Personal data: when collected about customers/users then you (as the website owner) needs to establish whether data protection registration is required. Under the Data Protection Act 1998, if the website is hosted or data is processed outside the EU then you will need to ensure that any parties contracted to supply services also comply with the UK data protection law. This should extend to subcontractors - where subcontracting is permitted.  A privacy policy is required.

Web-Analytics: when developing automated systems to evaluate/analyse advertising/system access or data mining bear in mind the requirement of data protection law.

Disability access: applies to websites and the website owner is obliged to permit reasonable access to the website and its services, particularly when supplying utilities, public services or financial information/services to consumers. The Web Accessibility Initiative (a group which involves various disabled organisations, developers and hardware/software manufacturers) has provided standards/rules for the community to provide/improve disabled access and is working on an updated version for the digital world. A new British Standard for building websites/maintaining content is under discussion.

IPR Law: still applies to all content on the website and trade mark law will apply where registered brands are (mis)used. You will need to comply with local jurisdictional regulations to protect both. The English Premier League was caught out when it failed to register copyright of its match video clips in the US and the case for statutory damages was dismissed in a US court when trying to claim against YouTube and Google for alleged offences under the Digital Millennium Copyright Act.

Security: third party secure schemes are often used but often for direct credit/debit payments fraud is increasing where the card holder is not present. A secure e-form should include the PIN number. Different access/ security systems can be used for types of (subscription) users and are required for those who are under 18 for both a age appropriate use of the website and payment for any goods purchased.

Disclaimer: if you wish to link your website to other websites then a disclaimer should be include in relation to responsibility of the content on the other sites. You should also seek permission from the other website before linking.

Digital downloads: the UK government is planning to put in place more stringent regulations for digital downloads than the currently proposed EU Directive - watch this space!   

Updates: the website should be checked regularly to ensure compliance with UK/EU law both in relation to e-commerce and internet law, and also intellectual property law and consumer/data protection law requirements over time.

A 2008 Office of Fair Trading survey noted that only 17% of consumer websites were fully legally compliant. While many sites were generally compliant the location and depth of detail and some of the information provided on the website did not comply with the legal regulations or was missing.

Gill Felton
Solicitor
BCS Legal Group

July 2009