Does your Website Disclaimer have to be Reasonable?
By · CommentsIf you have a website disclaimer, does it have to be reasonable?
If you want it to work for you, then yes it does!
Your very first step is to login and check whether you have one, and what your website disclaimer says.
Do you have a website disclaimer? If you do, have you read it? Did you get your website designer to put a disclaimer on your website from goodness knows where? That is risky.
You might have a disclaimer as part of your website terms and conditions, or sitting on a separate link. Your disclaimer might include a limitation of liability, and it might not.
Now you have found your website disclaimer you might wonder why anyone would ask about the reasonableness of of it. Aren't disclaimers supposed to protect you from ridiculous lawsuits?
Just so.
The thing is, consumer protection laws around the world are written to protect consumers. It is assumed that if you are in business then you know more than your customers and should take steps to protect them.
[As an aside - Small business in Australia is worth about 46%* of our Gross Domestic Product, and about 80% of all new small business fail in the first 3 years... so maybe business owners are not better off than consumers, but this is the law we've got]
Under consumer protection laws you have responsibilities to your customers that cannot be avoided through by using a website disclaimer. In fact, if you try and avoid your consumer responsibilities, then your website disclaimer can be deemed void and you can be fined – which defeats the whole purpose of having a disclaimer in the first place!
So, if you are selling products or services to Australian Consumers, here is what you need to know:
- You can expect your customers to exercise some care in their purchase of your products or services;
- You have to comply with the Australian Consumer Guarantees;
- Your website disclaimer cannot breach your obligations under Australian Consumer Laws;
- Your terms and conditions, including any website disclaimer, must be reasonable and not unfair.
Have you ever seen one of those website disclaimers that tries to say that the business owner is not responsible for anything, at all, whatsoever and definately not consequential losses? I have, and they are not likely to be enforceable in Australia.
To protect your business your website disclaimer DOES have to be reasonable.
But what is reasonable? A common test for what is reasonable is to say “What would an ordinary customer in the same circumstances have expected from your product?” If you sold someone a bicycle and then said that you can't be responsible for someone using it as a bicycle, then your disclaimer is probably not reasonable, and to be frank, why would anybody buy a bike from you if you did that?
As an example, let’s consider paint.
If you are selling external all weather paint with a 10 year guarantee, you can’t then disclaim that it can be used outside in the weather.
You might have a special type of paint that adheres better to metal than to wood. Then you could use a disclaimer in the form of a simple statement “recommended for metal surfaces, not suitable for wooden surfaces” to say that it is especially suitable for metal and not wood. Then if a customer uses it on wood and complains that the paint is peeling after only 12 months, you can rely on the statement and may be able to avoid having to pay for repairs or replacement paint.
After all, you were clear, the customer made a choice to either ignore your notice or risk that the paint might not work as well on the wood. It is reasonable expect that your customer read the label. Of course, this might be affected by where your disclaimer sits on the label on the paint tin and the size of the writing. If selling through your website, you should include any disclaimer like that in the product description before the customer can click through to purchase the product.
We'll look at where disclaimers should appear on your website in a later post.
Writing Copy? Laws do apply!
By · Comments
Are you writing copy for other people?
Did you know that consumer protection laws have always applied?
What's consumer protection?
Consumer protection laws are essentially laws that say you, as the copywriter, or your client as the business owner, are in a much better position to know what you are talking about than any customer out there. If you write web copy that includes wild claims, then chances are that a customer could be misled.
This is pretty serious stuff. The old adage "the customer is always right" has been taken to a new level. The way it works under consumer protection laws is that the customer is never responsible if something goes wrong.
It's Your fault if the customer believes something about your product that is NOT TRUE
Some people have heard me use the example of Ribena before. Ribena said that their blackcurrent drink contained more vitamin C than oranges and a school girl's chemistry experiment proved that claim wrong. You see, it was sales copy. It sounded good. No one really worried about whether or not it was true. Harmless, right? Ribena paid large fines and spent hundreds of thousands changing all of its marketing material and publishing remedial advertising.
Have you written some website copy that could be considered misleading?
If you wrote web copy for others, I hope you have good disclaimers in your contract for hire. If you are using a website copywriter, I hope you're not making promises you can't keep!
Easy way to check? Go through your copy and highlight anything you don't have facts or figures to back up. Interesting exercise, huh?
Some specific website copy that is being targetted for extra attention now are things like:
- limited time only (when its not)
- worth $97 but today $47… (where the product has never been sold for more than $47)
- pop-ups with upsells
- videos and testimonials containing an actual customer telling their actual story (without written confirmation from the person making the testimonial that it is in fact true)
- as seen on tv (without reference to which station and when)
- major brand logos (without written authorisation)
Have a look at the detailed guidelines published by Clickbank (seller of online information products) for more detail.
The Legal Essentials Program includes a checklist of essential elements to be included in a copywriters' contract (whether you write copy or hire someone to do it for you), and a template agreement so that you can see what a stardard agreement could look like.
Just because you can find it for free on the internet, does NOT mean that it is "public domain".
Sure, it is out there for access by the general public, but "public domain" is a legal concept – with legal consequences!
I was contacted by someone recently who got a bill from Getty's Images for $800 for using a picture that they copied from the results of a Google search. If it is a Getty's Image, then they can charge you a fee unless you paid them to use it in the first place. They send out letters every day and pursue payment.
When you search for an image on the internet, most of them come up with "this image may be subject to copyright". So check before you use it!
You’re first point of call is to check the terms and conditions of the website where you are sourcing pictures. It should stipulate what you can and cannot do with the images sourced from that site.
The same goes with books and other written works.
Essentially, if the author passed on more than 50 years ago, the writing is most likely in the public domain. This is not always true though because in some countries copyright can be renewed and the term of copyright was extended more recently to 70 years after the death of the author in a lot of countries. So you need to know where and when the author died to figure out whether or not a book is still subject to copyright.
For something now in the public domain, you can republish the book and get copyright in the layout (typesetting and appearance) of the way a book is presented, but you won't get copyright in the actual story or words. You will find a lot of different copies of "Think and Grow Rich" by Napolean Hill out there for just this reason!
I've been asked if it is ok to just quote the ISBN of a book in the public domain. The ISBN is associated with the work as published (and identifies the publisher), rather than the content. So for you to quote the ISBN of a different publisher on your website it would in fact be misleading. If you need one, get a new one that identifies you as publisher!
What you should do is ensure that you properly identify the author. If you would like an example of what it is that you want to do, go and have a look at any one of the multitude of books on “The Science of Getting Rich” authored by WD Wattles that are published out there. You will find that each has a different introduction by the person publishing the new edition.
Where can I get public domain books?
There are a number of websites that have a host of public domain publications and explain the origin of those publications. You are safest with books and writings created prior to 1900, however there are many writings published after that date now out of copyright. Gutenberg http://www.gutenberg.org/ is a great example.
Checking whether or not a book is in the public domain depends upon the country in which it was first published, when it was published and when the author died. In the US the law changed from 1 January 1978 so that copyright expired in 2006 unless it was specifically renewed. I am aware that the copyright in Napoleon Hill’s work "Think and Grow Rich" was not renewed, and has therefore expired and is in the public domain in the United States, and according to international conventions, is most likely to be internationally in the public domain. That is only in respect of the original version and not with respect to any of the more recent published editions with introductions by different authors.
Always double check first! Better to be safe, than sorry!
Protecting your Intellectual Property – is it worth it?
By · CommentsIn late 2010 the UK Strategic Advisory Board for Intellectual Property Policy issued a report about the costs and obstacles associated with enforcement of intellectual property rights.
The report was based upon a survey of people who had been involved in disputes between 2003 – 2009, but was limited to patent and registered design cases.
Patents are generally used to protect inventions. Online the most common use for patents relates to software. Design registration is generally used for the protection of industrial designs, rather than fashion designs, which are too quickly and easily copied. Industrial design might relate to mechanical parts etc.
Essentially, the survey found that you either sent a legal demand and quickly resolved the dispute, or you got engaged in long-winded and costly court action. There wasn't much of an in-between position.
An interesting outcome was that mediation and arbitration were not favoured procedures for resolving IP disputes. This may have something to do with IP enforcement ending with a "you are/you aren't" result rather than a collaborative resolution. An argument along the lines of "you can't be a little bit pregnant".
Factors influencing decisions to protect or not protect IP?
- Too costly. Some businesses have simply given up trying to protect their inventions.
- Reputational and financial costs of failure in an action to protect IP.
- Staff time involved in the process.
- Overseas enforcement simply unaffordable.
What the survey didn't address was whether the lack of enforcement activity actually impacted the bottom line of the businesses involved in a measurable way. After all, it is a commercial decision and if you are making money regardless of the copies out there, how are enforcement procedures going to improve your position?
Google Likes Privacy – Updates
By · CommentsDid you know that whether or not you have a Privacy Policy on your website can have an effect on your Google ranking? So I've heard anyway. Mike Rhodes, you're friendly neighbourhood AdWords expert over at www.WebSavvy.com.au told me so!
And as you probably know, what Google likes to see changes that benefit the market. Often.
From 17 May 2011 Google added 3 new requirements to its 'wish list' of things you should include in your privacy policy if you are using AdWords to advertise your website. Failure to impliment these policies could mean your ad campaigns get suspended!
If you don't use AdWords, then strictly speaking, this doesn't apply to you.
BUT…
Paying attention to the wants and requirements of the biggest search engine in the World is not a bad thing!
So, what is Google looking for?
- Clear, accessible disclosure before visitors submit personal information (something I have always advised my client)
- Option to discontinue direct communications (making it clear that people know how to get off your mailing list as soon as they get on it if they want to – will be interesting for coupon sites!)
- Secure connections when collecting payment and certain financial and personal information
One of the biggest changes I take from this is that all those websites out there that open with an form to capture your name and email will now need to be careful about including a link to their Privacy Policies, and an easy opt-out. I don't know about you, but I usually want to have a look at a website before I decided to hand over my details and any site that wants me to put in my details first, I just click off. Soon they might even fall down the Google ranking…
Here's a link to Google's update – http://adwords.blogspot.com/2011/05/upcoming-adwords-policy-changes-to.html
If you want me to review and update your privacy policy, email me now – info@lawforyourwebsite.com
Keywords – Yours, or Your Competitors?
By · CommentsRecently decided US cases provide more pragmatic and realistic approaches to trademark infringement using keywords.
In Toyota Motor Sales v. Tabari the court recognised that online shoppers are pretty savvy about what they are doing. “They skip from site to site, ready to hit the back button when they’re not satisfied with a site’s contents . . . consumers don’t form any firm expectations about the sponsorship of a website until they’ve seen the landing page — if then.”
In that case the court refused to uphold an injunction stopping a car sales yards from using the trademark "Lexus" in domain names.
In Network Automation, Inc. v. Advanced Systems Concepts, Inc the court looked at the use of infringement of trademarks in the use of keyword search terms.
As close competitors, Advanced systems purchased the use of a keyword "activebatch", which just happened to be the name of Network's main product. Of course their adds showed up – although in the sponsored field, not the natural search field.
Previously, companies upset about having their competitors adds show up have been able to argue that:
- advertising is part of trade
- the mark belongs to the company complaining
- both companies use online advertising, which could lead to confusion on the part of the customer
Now the 9th Circuit Court is asking keyword abuse complainants to show:
- what is the strength of the trade mark (well known?)
- is there any evidence of actual confusion by customers?
- what type of goods are being advertised and what degree of care is the purchaser going to exercise before hitting the "buy" button; and
- looking at results page, the appearance of the ads and surrounding text on the page, is the customer likely to be confused?
The last point addresses the fact that Google users are pretty familiar with the results page format and can tell the difference between natural results, paid advertising and premium advertising and often trust the natural results first.
The result was that the Court removed an injunction stopping Advanced from using the "activebatch" keyword in its advertising.
Prior to this decision the European Court had found Google not liable for the purchase of trademarks as keywords for advertising, although it did comment that the advertiser itself may be in breach. In Australia trademark protection has not been the chosen approach. Instead, the Australian courts have looked at whether or not the behaviour can be considered to be misleading and deceptive from the perspective of the customer – more in line with the 9th Circuit Court's new approach.
It will be interesting to see what other international decisions take note of this approach.
What does this mean for you?
- Using other company's trademarks as keywords is something you do at your own risk
- You can now test the arguement that customers are not stupid and are likely to know the difference between what is a paid advertisement and what is a natural search result
- If the courts think you're use of another company's trademark is likely to confuse customers, you're more likely to be in trouble than not
- As long as the domain name dispute resolution bodies pay attention to court decisions, it may be possible to register new domain names including the trademarks of other companies
Dealing with Lawyers
By · CommentsI've just written another article for the Australian Psychological Society's InPsych magazine. This one was about helping psychologists to respond to queries and demands from lawyers and it really got me thinking. Especially after being one of the "Change Makers" on the panel at the Fast Forward Business event in Melbourne last Sunday.
When I started studying law I had this idealist expectation that being a lawyer would enable me to help people. Unfortunately, I have since found out that a lot of people consider lawyers a "necessary evil" rather than "help".
How did we get to that? And where did it start?
Even Shakespeare has some unkind things to say about lawyers.
What is your impression of lawyers as a profession, any you've met in particular (no names please)?
Where do you think that impression came from, if not about an individual?
If you didn't have any pre-concieved ideas about lawyers, what would your expectation be?
As a profession I do think our attitudes and service delivery are about 100 years behind the rest of the business world, and it does concern me that any time you get most lawyers involved in "dispute resolution" it actually makes the dispute worse.
What do you think?
Cybercrime – World Governments Working Together
By · CommentsIt is a little embrassing that Australia doesn't even rate an appearance on the "World" map showing the global reach of the Council of Europe Convention on Cybercrime, but it doesn't.
Thankfully, the Australian government have taken a serious interest in becoming involved, – National Interest Analysis on international Cybercrime Convention - recently calling for feedback on where Australian laws are already consistent with the Convention, and what government and business would need to do to comply.
The aim of the Convention is to make it easier for regulatory bodies to communicate across boarders and prosecute, similar to what happened earlier last year with anti-spam activities.
The Convention asks signatory countries to make the following activities crimes:
- offences against the confidentiality, integrity and availability of computer data and systems
- computer-related offences (such as forgery and fraud)
- content-related offences (such as child pornography)
- offences relating to the infringement of rights such as copyright.
So, should we be in, or out?
I think global co-operation is inevitable online, and countries that are not prepared to cooperate run the risk of becoming havens for criminal behaviour.
Mobile Phone Spam
By · CommentsTired of those marketing text messages? Yes, me too! Did you know that there are just as many regulations around mobile phone spam as there are around email spam?
The Australian Communication and Media Authority – ACMA for short – has recently warned e-marketers that the publication of an email address or mobile telephone number on a website is "not an open invitation to send messages".
E-marketers need to understand that the publication of an email address or mobile telephone number on a website is not an open invitation to send messages,’ ’ said Chris Chapman, ACMA Chairman.
The accepted position in Australia has been that if a person or business publishes a phone number or email address as part of an advertisement or promotion of their business, then it is okay to send them marketing information that they might "reasonably" expect. Like a painter getting advertising about paint brushes. Something that could be unreasonable might be sending the painter cake recipes.
ACMA has recently issued warnings for bad behaviour by business in two respects -
- In the first case, Premier Auto Wholesale sent SMS messages to mobile phone numbers it took from online ads for used cars. ACMA found that the phone numbers in the ads were published along with a statement that marketing messages were not welcome.
- In the second case, Home Loan Selection Services couldn't show that it had consent to send emails promoting its business.
In both cases people complained and ACMA listened and took action. Don't think that you're customer's complaints are falling on deaf ears.
Just as with email, it has to be easy for people to unsubscribe from receiving sms or mms content, usually by replying "STOP" to an unwanted email. Customers can also now complain about mobile phone spam directly to ACMA by registering online and then forwarding any offending sms.
Don't risk your business with opportunistic behaviour and be prepared to apologise and make undertakings and clean up your act if you do get told off!
