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A Legal Checklist for Websites – How Does Yours Rate?

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A Legal Checklist for Websites – How Does Yours Rate?

Whether you’ve had your website professionally developed or you’re considering a DIY job, this quick list of legal considerations could save you a fortune. The global reach of a website comes with a level of exposure that could result in unwanted attention if you haven’t turned your mind to the following issues.

  • Is my business name registered?

This might seem very basic, but enthusiasm has been known to override the natural order of things. Even if your business name is particularly unique, don’t start creating a website until it’s registered. An exception to this rule is if you trade in your own name. If, however, you add a word to your name (for example John Smith Plumbing or John Smith and Co) it will need registering. A search of existing business names and the process for registration can be found at ASIC.

  • Have I included my ACN?

Corporation law requires companies to include their Australian Company Number (ACN) on all public documents to ensure a company is clearly identified. So, consider which documents will be accessed from your website and ensure they comply. Regulatory Guide 13 contains more information on the use of ACN’s.

  • Does my logo, slogan or product name breach existing trade marks?

Even if you decide not to trade mark your own assets, it’s important to make sure you aren’t breaching someone else’s rights before they’re plastered all over your website. A search of existing trade marks can be done at  IP Australia, and you can learn more about trade marks in my previous articles.

  • Do I have permission to use the photos and music I’ve selected?

Unless you created the images and music to be used on your site, copyright laws impose penalties if they’re used without permission. There are plenty of sites who offer images and music under a range of different licences, many of which are free. So, don’t be tempted to copy images you’ve seen used elsewhere on the assumption that they are free to share.

  • Are my licences in order?

It follows that once you’ve been given permission to use certain assets, you keep a record of them. Make a file that contains the agreements for the use of photos, music or any other content. Hopefully, you’ll never need to open it again, but if your use of an image is challenged, the information needed for any reply will be handy.

  • Do I have permission to use the content on my site?

As with images, written work is also protected by copyright. Be certain that you have permission to use the content on your site. If you created it, there’s no problem. But if you paid someone to write it for you, make sure the terms of the agreement include the type of use you are proposing.

  • Have I used trade marks in my meta-tags?

Meta tags are code or key words used in the background of your website. They aren’t visible to the public but are picked up by search engines to index the contents of your site and respond to searches. Using a trade marked name to direct traffic to your site in a misleading manner is considered an infringement. An example might be someone who makes a competing brand of chocolate using the terms ‘Cadbury’ or ‘Lindt’ in their meta tags.

  • Have I prepared my terms of use?

Your terms of use usually sit as a link at the bottom of each page, but customers should also be prompted to confirm they’ve been read prior to them providing personal information or committing to purchase. Terms of use contain all the legal ‘fine print’ to protect you from any misunderstanding on the part of the customer. Although they can be similar in form, they’re not a one-size-fits-all and will require your careful consideration.

  • Have I complied with the Privacy Act 1988?

This is a complex topic, but for the purposes of this article certain businesses are required to have a privacy policy that informs website users of the way in which their personal information will be used, how they can access it, and what security measures are used to protect it. The responsibility to provide this information falls on all businesses and not-for-profits with an annual turnover of $3 million. Businesses with a lower turnover are also included if they are health service providers, businesses that buy or sell personal information, or service providers under a Commonwealth contract. More information about Privacy Act obligations can be found at the Office of the Australian Information Commissioner

  • Do I have an ‘opt out’ mechanism?

Australian Privacy Principle 7 addresses direct marketing and requires businesses which collect information or compile mailing lists, to provide subscribers with a simple way of opting out of newsletters, emails or any other form of marketing.

A well-designed website can be a powerful marketing tool, so make sure you get it right. If you’re not sure what steps to take, consider the links provided or speak with your solicitor for personalised advice.

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