Your new website design is impressive. Tick.
You’ve managed to secure a brilliant copywriter. Tick. (No? Talk to me.)
Your website developer is booked in. Tick.
It’s all systems go.
Have you considered whether your website complies with any relevant legal requirements? By launching your site, are you inadvertently exposing yourself to legal risks?
Many small and medium business owners draw a blank when faced with questions about the legalities relating to their website. And that’s understandable. There are so many other things to think about.
However, taking a little time to think about website legal requirements now may save you a giant headache down the track.
Here, I outline some key legal considerations for Australian business website owners.
But first, a quick legal disclaimer of my own:
This post is not intended to provide legal advice. I’m a copywriter, and no longer a practising lawyer. The information here is intended only to get you thinking about website legal issues. For specific legal advice, talk to a practising lawyer.
Okay, let’s start.
False or misleading statements (Can you back up what you say on your website?)
You think your product is 10x better than your competitor’s? Great, I’ll give you 10 out of 10 for business confidence. But you’d better have some good evidence to back up that claim before you put it on a banner across your website. Katie Richards, lawyer and CEO at Virtual Legal, says suggesting your product is superior to your competitor’s product without actual evidence could mean you fall foul of misleading or deceptive conduct laws.
The Australian Competition & Consumer Commission (ACCC) summarises this area of the law nicely on its website:
“Any statement representing your products or services should be true, accurate and able to be substantiated. There are fines for businesses that mislead consumers. It does not matter whether a false or misleading statement was intentional or not.”
One exception to this general rule is claims that are just “puffery”. I found a great example of this when passing by a $2 shop in Dubbo on a recent holiday:
“The coldest drinks in NSW”
A claim isn’t misleading when it’s so outlandish, vague or fanciful that no one could possibly believe it’s true. (Then again, after a day at Western Plains Zoo in mid-summer I suspect a cool drink from this store may just seem like the coldest drink in NSW.)
But it’s not just statements about your products or services that can mislead. Some of the other no-nos listed on the ACCC’s website are:
- using false testimonials
- impersonating another business (“passing off”)
- advertising something for free when the fine print requires some type of payment
- offering goods at a special price but not having a reasonable quantity available (“bait advertising”).
Katie says she often sees Australian businesses referring to their competitors: “They need to be careful in doing this, as it could be seen as ‘passing off’ if they’re saying their product is the same as that competitor’s product.”
Defamation (an easy one to avoid)
Have you ever found yourself ready to spill some vulgar rumour—on your blog—about a competitor? Probably not.
But if you ever feel yourself drawn to the dark side, stop. Take a long, deep breath and then do your best to recall these next paragraphs.
The trusty Law Handbook 2017 tells us defamation law allows a person “who has had damaging material published about them” to “take legal action against authors, publishers, broadcasters and distributors to defend their reputation.” In Australia, one person, let’s call them person A, can use our national uniform defamation laws to sue another person, person B, for up to $355,000 if all of the following happen:
- person B publishes material (and this can include communicating to just one other person)
- the material identifies person A
- the material defames person A.
What does it mean to “defame” someone? The Law Handbook tells us it’s all about reputation: “Words are defamatory when they convey a meaning about a person that lowers the person’s reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the general public.”
Got it? Good.
Protecting copyright (Do you need that little © symbol on your website?)
Lisa Thomas, Principal Lawyer at Lextec Legal & Consulting, says that website content will be protected by copyright laws in Australia if the content satisfies threshold requirements under the Copyright Act 1968—regardless of the presence of that little © symbol and any notice about copyright. Broadly, these threshold requirements will be met where website content is original work created by an Australian citizen, resident or protected person, and is published on the internet.
While copyright laws may apply automatically when these threshold requirements are met, copyright can be difficult to show, says Lisa.
The Australian Copyright Council (ACC) also points out in its introductory information sheet that a “copyright notice is not mandatory to get copyright in Australia”. However, the ACC says that “putting a copyright notice on something is very helpful to remind people that the work is protected by copyright. Copyright owners can put the notice on their work themselves; there is no formal procedure”.
The ACC also provides a template for using the copyright symbol on a work that is continuously updated. I use it on my own website:
© Libby Hakim 2013–2017
Is my website content protected by copyright?
Like many legal issues, the answer isn’t a simple one.
Lisa says, “Website content is often made up of many components, including written content, images, music, embedded videos and even the website’s ‘look and feel’. It’s important to remember that each component must be examined separately for copyright protection, which may fall under the different categories of works (being literary, dramatic, music and artistic works) or subject matter other than works (sound recordings, cinematograph films, sound and television broadcasts, and published editions of works).”
While your original blog post or about page may tick off each of the threshold requirements to attract protection, other components may not be protected.
Your business name and tagline, for example, aren’t likely to be protected by copyright, says Lisa.
“If protection of a name and taglines/slogans in Australia is desired, the business will need a registered trade mark with IP Australia. Trade mark applications can take many months to finalise, and so the sooner the application process is started, the better.
Before applying for a trade mark, a comprehensive search of the trade mark register should be completed to identify any identical or similar trade marks that have an earlier priority date. However, if an identical or similar trade mark is identified, this does not necessarily mean that the new trade mark will not succeed. For example, the goods and services may be sufficiently different from one another to satisfy registration requirements, or registration of the new trade mark may still succeed if the business can prove continuous prior use of their trade mark.
Australian businesses operating internationally should also be aware that trade mark protection is jurisdictional and a registered trademark in Australia will not be protected in another country unless the business owner has a trademark registration in that country.”
Avoiding copyright infringements (the other side of the coin)
When it comes to your website and copyright, you need to think about both sides of the coin. Are you (perhaps inadvertently) infringing someone else’s copyright on your website?
Where did you source the images for your site? If it’s a stock photo, did you check the terms of the licence when you purchased the photo?
If you engaged a designer or copywriter, you’re relying on the originality of that person’s work. How sure are you that their work is original? What do their terms and conditions state about this? My own conditions, for example, indicate that I “endeavour to ensure that the work doesn’t infringe on any copyright or other right of a third party.”
When working with a copywriter or designer, you’ll also need to be clear on how copyright is to be transferred. My standard website copywriting terms and conditions state that I am the copyright owner of the content I’m working on for a client until the final version is delivered and my final invoice has been paid, at which time copyright transfers to my client.
Lisa says that these contractual copyright and intellectual property matters can be quite complicated and “using an IP lawyer to assist with understanding the contractual position and to negotiate with service providers is often very helpful.”
Privacy (Are you collecting personal information?)
Australia has laws that protect how a person’s identifying information is handled by website owners. If you’re a small business owner, you generally won’t have to comply with most of the Australian Privacy legislation, according to the Office of the Australian Information Commissioner (OAIC). If you want to be sure, the OAIC provides a checklist here.
Terms, conditions and disclaimers
Terms, conditions and disclaimers are other links you’ll generally see in the footer of each page of a website.
Website terms and conditions are the “rules by which visitors can use your website,” Katie explains. “It’s important to ensure customers know the rules from day one, and understand that if they don’t do the right thing, then they cannot use the website.”
Terms and conditions can cover things such as:
- limitations on your liability to third parties
- use of downloadable files and other information on the website
- refunds and returns
- the status of links to other websites.
Disclaimers deny liability arising from certain things, such as any loss arising from the use of the website, and can be included as a separate page or as part of your website’s terms and conditions. Katie says that it’s “prudent to put the disclaimer on each page so that the customer can’t say they weren’t reasonably made aware of the disclaimer”.
And, of course, there are things your website can’t disclaim. For this reason, Katie says it’s best that disclaimers are expressed to operate “to the extent permitted by law”. This means that if a dispute ends up in court, the disclaimer is “read down” by the court rather than being struck out in its entirety (that is, not able to be relied on at all).
Website legal requirements: where to now?
By now, you’re (hopefully) thinking that’s it’s a good idea to give this part of website development—the legal requirements—some further thought.
But don’t let your thought pattern run something like this:
Today: “Okay, I definitely need to do something about these website legal requirements.”
Tomorrow: “Oh, but lawyers are so expensive. And, hey, I only do [insert name of non-risky business]. There’s really not much risk.”
Next day: *chucks the whole idea in the “too hard” basket*
All businesses carry some degree of risk, however small, and as a former lawyer I’ve seen firsthand the horrible impact unexpected events can have on people’s lives and businesses. It’s much, much easier to do a little preventative work than deal with the fallout of an unexpected event.
Here are a few options you might like to consider:
Option 1: Pick up a free (or low-cost) website legal document package
Thanks to the current state of disruption in the legal market, some law firms and legal platforms are now offering free or low-cost website legal documents, including privacy policies, disclaimers and terms and conditions:
- Legal123 offers a low-cost complete website documents package, which is customised to suit your particular type of business and is updated free of charge when the law changes (this is the option I went with for my own business website)
- LawPath offers free standard website terms and conditions
However, Katie cautions that “it’s always best to get tailored legal advice for your business on these matters. Given that terms and conditions are the rules by which people can use your website, and no two businesses are the same, it is not possible that standardised documents can properly cover all different online businesses.” However, having a simple set of terms and conditions in place is better than having nothing at all, she stresses. “But once you can afford to do so, get these things in place properly to protect what you’re working so hard to build.”
Option 2: Hire a lawyer
Hiring a lawyer from a big, full-service firm will likely be expensive. But, as they say, you get what you pay for.
However, there are now plenty of high-quality alternate legal service providers to consider. Online legal marketplaces match freelance lawyers with contract work and one-off jobs. Check out Crowd & Co, Lexoo, LegalVision and Vario.
Online law firms and highly skilled big firm lawyers who have decided to go out on their own are other great options. The lawyers who provided their expertise for this article are great examples in this category:
- Lisa Thomas, Principal Lawyer at Lextec Legal & Consulting
- Katie Richards, lawyer and CEO at Virtual Legal.
Option 3: Free information and advice
There’s plenty of freely available information out there on website legal requirements. As is the case these days, the biggest problem is wading through that plentiful information. So I’ve made a start on narrowing down the list of possibilities for you:
- Contact your professional association or other relevant industry bodies and ask about any available information or advice on these topics
- If you’re a member of a business chamber, you’re sometimes entitled to free legal advice
- Find out if a legal centre related to your industry exists (such as the Arts Law Centre of Australia)
- You could also check out:
The information here is only the beginning of a discussion about website legal requirements. If you have an e-commerce site, are part of a regulated profession, or deal with European customers, for example, there are a whole host of additional issues you’ll need to consider.
And remember, ignoring these things won’t make them go away. So, make a start today on making your website lawyer-proof.
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