A website needs not only to be technically suitable for your needs and attractive and appropriate to your audience but also needs to be legally compliant. At the simplest level your site must display your corporate registration details in the same way as your notepaper and you must secure the necessary rights to use the different elements that make up your site.

Absent any agreement to the contrary the copyright in the website design and the individual elements within it such as logos and photographs belong to the individuals who create them or their employer where the work is carried out in the course of their employment, so if you are using third parties for any part of this work you need to make sure that the copyright is either made over to you or that you have ongoing rights to use it and to adapt it as you please. You will normally want a fully paid up perpetual licence to these elements so that you do not have to worry about losing the rights later or having to pay additional fees. If any element of the design is to be used for other purposes such as flyers or presentations you need to ensure that the licence you obtain from the originator covers these additional uses.

Considerations for Web Developers

Of course if you are the person developing sites for others you will also want to take these points into account and additionally will want to include in your own terms a warranty from your client that they own or have appropriate rights to any material they supply to you for inclusion on the site so that you do not have to fight off any claims of copyright infringement yourself. If your business involves hosting material from others or selling the goods or services of others you will also want to include similar safeguards.

Increasingly businesses are using their websites to trade directly and to engage interactively with customers. Great care must be taken in these cases to ensure that risk and liability are assessed and managed through contractual terms and active site monitoring and maintenance. If a 24/7 service is not to be guaranteed expectations must be managed. Where personal data is involved steps must be taken to ensure compliance with the Data Protection Act while sales of products must be in accordance with the Distance Selling Regulations. Company websites can now be considered advertising and so you should familiarise yourself with the CAP code and any sector specific codes of practice that may apply to your type of business.

Where your web based business is dependent on third party technology you should also ensure that the licence will continue if you sell your business as otherwise you could find the value of your business is greatly reduced and you will be in a very weak bargaining position if you have to negotiate a solution at that late stage. Additionally if you are a software designer whose work includes that technical solution you may wish to limit the client’s rights to use the software to specific purposes and to prohibit tampering with the code.

Websites have come a long way from the early static advertisements but unfortunately this has also added to the legal complexity to be negotiated.

Further information on the topics discussed in this article can be obtained from Patricia Barclay at patricia@bonaccord.eu or on 0131 202 6527.

About the Author:
Patricia Barclay is a solicitor with over 20 years experience helping businesses commercialise their ideas. Before founding Bonaccord, www.bonaccord.eu, she worked in industry and has headed up the global legal departments of two multinational pharmaceutical companies. In 2010 she became the first Scottish lawyer to be honoured with a fellowship of the American Bar Association. Patricia can be contacted at patricia@bonaccord.eu.

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