By Peter James.

Before you even start using a domain name, check if it is the same as a trade mark or trading name of a third party - this will save time and expense later. The copyright in the design and/or the content of your site may not belong to you. Contractors and employees may, in certain circumstances, retain the copyright, unless you have an appropriate contract in place. Many businesses do not know if they actually have the domain name registered to them. It could be registered to an individual employee (who could leave, making renewal difficult) or be held by the business that dealt with the registration.

When trading online there is a three part “tool kit” which you must have: As regards terms of use some of the key issues to be addressed are:

1. Incorporation: There is little point in having “state of the art” website access terms, if visitors are not made subject to them. Use a click-through “I accept” box, which must be completed before the visitor can proceed.

2. Licence scope: What can the user do? It should also assert the website owner’s rights (including IP rights).

3. Disclaimer: Include a disclaimer of liability for the content and performance of the website.

4. Law and scope: Which law will apply?

5. Visitor uploads: Reserve the right to take down comments considered offensive etc.

6. Viruses: A prohibition on introducing viruses and, conversely, excluding any liability on the part of the website owner if anything from the website infects the visitor’s computer. The website is the same as any other part of your business when it comes to processing personal data regarding users. You should put on your site a privacy policy to cover:

7. Information collected: What will be collected, how and for what purposes?

8. Cookies: Cookies, used to identify a user’s preferences, cannot be placed on a user’s computer unless the user is told about the purposes of the cookie and is given the opportunity to refuse the cookie.

9. Personal data: State whether personal data collected is transferred or stored outside the European Union and how security is provided. Include a commitment to take all reasonable precautions to protect the security of data, but without guaranteeing security of data sent over the Internet.

10. Uses: Set out the uses made of the data.

11. Rights: Explain the right of the individual to object to their data being used for marketing purposes, to make a subject access request and to have data corrected. The final part of the tool kit is the e-trading terms and it is vital that these terms of sale are accepted by the customer before the transaction proceeds, so use a click-through “I accept” box. The process and format is similar to a “traditional” sale, subject to the following special considerations: • Information: See weblink (bottom right) for requirements.

12. Availability: A statement that the site is, for example, only for use of EU residents, who are over 18 and legally capable.

13. Contract formation: Set out the process for order acceptance. The worst situation is to have a contract formed when the customer responds to an “offer” on the website, if that was not intended or incorrect prices were stated.

14. Consumer rights: The same as for other sales, but add cancellation rights. In summary, some of the website issues to consider are:
a. Who designed your website?
b. Who owns the copyright in the design and the website content?
c. Who owns my domain name?
d. How can users refuse cookies?
e. Do I have terms of use and e-trading terms and are they effectively incorporated?
f. Do I have a privacy policy and do I follow the rules regarding personal data?
g. Do I comply with the rules regarding basic information and rights of consumers?

Peter James is a partner in the commercial and technology team at Clarkslegal LP B

Previously published in the Thames Valley Chamber of Commerce Group’s Business Voice magazine.